1. In Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332 , the passage reads: “The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue…This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases….It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”
2. In his application dated 19th June, 2025, the applicant is seeking the following prayers;
a. That the court be pleased to certify the application as urgent and the same to be heard on priority basis.
b. That pending the hearing and determination of the application, this Honourable court be pleased to issue an Order of stay of taxation proceedings in respect of costs scheduled for 3rd July 2025 arising from HCCA 136 of 2025.
c. That pending the hearing and determination of the application, this Honourable court be pleased to issue an Order of stay of enforcement, execution and arrest, including warrants issued against the applicant in relation to the disputed Judgement in SCCC No. E1691/2023.
d. That this honourable be pleased to issue further and or other orders as it may deem just and fit to grant in the circumstances.
3. The application is supported by the affidavit which reiterate the same grounds set out on the body of the application. They are;
a. The judgement in the primary suit, consent judgement was recorded without his knowledge and instructions by Kamah Kibathi & Co. Advocates and Moses Mugwe Advocates.
b. This was a personal injury claim which was to be partly paid by the Policyholders Compensation Fund in the sum of Kshs250,000/ and Xplico Insurance.
c. There are warrants of arrest against the appellant and yet, he has not been heard.
d. There was an appeal to the High Court which was dismissed without a finding on the core issue of fraud.
e. That unless this honourable court grants a stay of execution, he stands to suffer irreparably.
4. Based on the grounds of appeal, the Respondent raises the following opposition;
a. This application is an afterthought after the initial similar application dated 17th February, 2025 was dismissed.
b. Several other applications were filed with respect to this matter touching on the judgement including suits against Advocates in the matter but were all dismissed.
c. Upon dismissal of the stay application by the high Court, the appellant filed a suit against the Respondent in the lower court being Milimani SCCCNo. E1825/2025- Titus Kioko Vs Fednard Lubanga Jumba & Clinton Machuki which the respondent filed a Preliminary Objection. The suit was dismissed with costs.
d. The appellant has become a vexatious litigant filing suit after suit, application after an application with a sole aim of avoiding execution and settlement of the decretal sum.
e. The respondent relies on the principal of finality which is hinged on the public interest that litigations must come to an end.
Analysis and Determination:
5. I have perused the written submissions which I have put into context in this ruling. Additionally, I have perused the Ruling of Lady Justice Janet Mulwa delivered on 27th March, 2025 relating to similar application and I find no reason to rehash the analysis by sister Judge.
6. The common thread that runs in all applications for a stay of execution pending appeal in our courts, is well established in a host of decisions and some of them being, Kiplagat Kotut vs Rose Jebor Kipngok [2015] eKLR, Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others [2012] eKLR and Kenya Shell Limited vs Kibiru which underscore that an application of this nature cannot granted unless the conditions in Order 42 Rule 6 of the Civil Procedure Rules are satisfied which are;
a. Substantial loss may result to the applicant unless the order was made;
b. The application was made without unreasonable delay; and
c. Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
7. Evidently, the three (3) prerequisite conditions as set out in the said Order 42 Rule 6 of the Civil Procedure Rules, 2010 cannot be severed. The key word is “and”. It connotes that all three (3) conditions, must be met simultaneously.
8. The only issue for determination is whether or not, the application is res Judicata.
9. Section 7 of the Civil Procedure Act provides as follows: “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
10. In the case of William Koross Vs Hezekiah Kiptoo Komen & 4 Others [2015] eKLR Court laid down the essence of the doctrine of res judicata as follows; - “ The philosophy behind the principle of res judicata is that there has to be finality; litigation must come to an end. It is a rule to counter the all-too human propensity to keep trying until something gives. It is meant to provide rest and closure, for endless litigation and agitation does little more than vex and add to costs. A successful litigant must reap the fruits of his success and the unsuccessful one must learn to let go… The practical effect of the res judicata doctrine is that it is a complete estoppel against any suit that runs afoul of it, and there is no way of going around it – not even by consent of the parties – because it is the court itself that is debarred by a jurisdictional injunction, from entertaining such suit.” The Court went on to state: “Therefore, for the bar of res judicata to be effectively raised and upheld the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms: -a. The suit or issue was directly and substantially in issue in the former suit. b. That former suit was between the same parties or parties under whom they or any of them claim. c. Those parties were litigating under the same title d. The issue was heard and finally determined in the former suit and e. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised”
11. Further, in the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others (2017) eKLR, Court stated: - “The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”
12. Lady Justice Janet Mulwa heard a similar an application for stay dated 17th February, 2025 and delivered which reads in part; “11: upon the above and having considered the rival arguments, the court notes that the Memorandum of Appeal as filed, does not raise any triable issues on the matter of liability the same having been resolved by consent of the parties. On the other hand, the applicant has failed to explain to the court his failure to file the appeal (Memorandum of Appeal) within statutory period and what prejudice he would suffer if stay orders are not granted…the court finds that the impugned judgement was delivered on 16/8/2023. It was lawful and regular Judgement wherein the applicant participated in the trial…there being no satisfactory ground upon which the application may be granted, the court proceeds to dismiss the same with costs to the Respondent”
13. The application before me is somewhat peculiar in the sense, that there is no appeal upon which it is founded. I say so because the draft Memorandum of Appeal upon which was attached to the initial application for stay of execution dated 17th February, 2025 was dismissed by Lady Justice Janet Mulwa on 27th March 2025. As it were therefore, the application dated 19th June, 2025 is hanging on nothing, and so, it cannot hold.
14. I also note that the applicant has not based the application for stay of taxation on any law, but the hard fact is, that the stay of taxation proceedings herein, is stay of execution through the back door. The matter has already been dealt by Lady Justice Mulwa and I am barred by law established, from entertaining a similar application.
15. Having made the remarks and in disposal, I make the following orders.
a. The applicant’s notice of motion for stay of taxation proceedings dated 19th June, 2025, is hereby dismissed for being res judicata.
b. The costs of this application to the Respondent.
Delivered virtually this 9th September, 2026 in the presence of the appellant and Mr Jailu Advocate for the Respondent.
2. In his application dated 19th June, 2025, the applicant is seeking the following prayers;
a. That the court be pleased to certify the application as urgent and the same to be heard on priority basis.
b. That pending the hearing and determination of the application, this Honourable court be pleased to issue an Order of stay of taxation proceedings in respect of costs scheduled for 3rd July 2025 arising from HCCA 136 of 2025.
c. That pending the hearing and determination of the application, this Honourable court be pleased to issue an Order of stay of enforcement, execution and arrest, including warrants issued against the applicant in relation to the disputed Judgement in SCCC No. E1691/2023.
d. That this honourable be pleased to issue further and or other orders as it may deem just and fit to grant in the circumstances.
3. The application is supported by the affidavit which reiterate the same grounds set out on the body of the application. They are;
a. The judgement in the primary suit, consent judgement was recorded without his knowledge and instructions by Kamah Kibathi & Co. Advocates and Moses Mugwe Advocates.
b. This was a personal injury claim which was to be partly paid by the Policyholders Compensation Fund in the sum of Kshs250,000/ and Xplico Insurance.
c. There are warrants of arrest against the appellant and yet, he has not been heard.
d. There was an appeal to the High Court which was dismissed without a finding on the core issue of fraud.
e. That unless this honourable court grants a stay of execution, he stands to suffer irreparably.
4. Based on the grounds of appeal, the Respondent raises the following opposition;
a. This application is an afterthought after the initial similar application dated 17th February, 2025 was dismissed.
b. Several other applications were filed with respect to this matter touching on the judgement including suits against Advocates in the matter but were all dismissed.
c. Upon dismissal of the stay application by the high Court, the appellant filed a suit against the Respondent in the lower court being Milimani SCCCNo. E1825/2025- Titus Kioko Vs Fednard Lubanga Jumba & Clinton Machuki which the respondent filed a Preliminary Objection. The suit was dismissed with costs.
d. The appellant has become a vexatious litigant filing suit after suit, application after an application with a sole aim of avoiding execution and settlement of the decretal sum.
e. The respondent relies on the principal of finality which is hinged on the public interest that litigations must come to an end.
Analysis and Determination:
5. I have perused the written submissions which I have put into context in this ruling. Additionally, I have perused the Ruling of Lady Justice Janet Mulwa delivered on 27th March, 2025 relating to similar application and I find no reason to rehash the analysis by sister Judge.
6. The common thread that runs in all applications for a stay of execution pending appeal in our courts, is well established in a host of decisions and some of them being, Kiplagat Kotut vs Rose Jebor Kipngok [2015] eKLR, Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others [2012] eKLR and Kenya Shell Limited vs Kibiru which underscore that an application of this nature cannot granted unless the conditions in Order 42 Rule 6 of the Civil Procedure Rules are satisfied which are;
a. Substantial loss may result to the applicant unless the order was made;
b. The application was made without unreasonable delay; and
c. Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
7. Evidently, the three (3) prerequisite conditions as set out in the said Order 42 Rule 6 of the Civil Procedure Rules, 2010 cannot be severed. The key word is “and”. It connotes that all three (3) conditions, must be met simultaneously.
8. The only issue for determination is whether or not, the application is res Judicata.
9. Section 7 of the Civil Procedure Act provides as follows: “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
10. In the case of William Koross Vs Hezekiah Kiptoo Komen & 4 Others [2015] eKLR Court laid down the essence of the doctrine of res judicata as follows; - “ The philosophy behind the principle of res judicata is that there has to be finality; litigation must come to an end. It is a rule to counter the all-too human propensity to keep trying until something gives. It is meant to provide rest and closure, for endless litigation and agitation does little more than vex and add to costs. A successful litigant must reap the fruits of his success and the unsuccessful one must learn to let go… The practical effect of the res judicata doctrine is that it is a complete estoppel against any suit that runs afoul of it, and there is no way of going around it – not even by consent of the parties – because it is the court itself that is debarred by a jurisdictional injunction, from entertaining such suit.” The Court went on to state: “Therefore, for the bar of res judicata to be effectively raised and upheld the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms: -a. The suit or issue was directly and substantially in issue in the former suit. b. That former suit was between the same parties or parties under whom they or any of them claim. c. Those parties were litigating under the same title d. The issue was heard and finally determined in the former suit and e. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised”
11. Further, in the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others (2017) eKLR, Court stated: - “The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”
12. Lady Justice Janet Mulwa heard a similar an application for stay dated 17th February, 2025 and delivered which reads in part; “11: upon the above and having considered the rival arguments, the court notes that the Memorandum of Appeal as filed, does not raise any triable issues on the matter of liability the same having been resolved by consent of the parties. On the other hand, the applicant has failed to explain to the court his failure to file the appeal (Memorandum of Appeal) within statutory period and what prejudice he would suffer if stay orders are not granted…the court finds that the impugned judgement was delivered on 16/8/2023. It was lawful and regular Judgement wherein the applicant participated in the trial…there being no satisfactory ground upon which the application may be granted, the court proceeds to dismiss the same with costs to the Respondent”
13. The application before me is somewhat peculiar in the sense, that there is no appeal upon which it is founded. I say so because the draft Memorandum of Appeal upon which was attached to the initial application for stay of execution dated 17th February, 2025 was dismissed by Lady Justice Janet Mulwa on 27th March 2025. As it were therefore, the application dated 19th June, 2025 is hanging on nothing, and so, it cannot hold.
14. I also note that the applicant has not based the application for stay of taxation on any law, but the hard fact is, that the stay of taxation proceedings herein, is stay of execution through the back door. The matter has already been dealt by Lady Justice Mulwa and I am barred by law established, from entertaining a similar application.
15. Having made the remarks and in disposal, I make the following orders.
a. The applicant’s notice of motion for stay of taxation proceedings dated 19th June, 2025, is hereby dismissed for being res judicata.
b. The costs of this application to the Respondent.
Delivered virtually this 9th September, 2026 in the presence of the appellant and Mr Jailu Advocate for the Respondent.