https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11934

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPEALS DIVISION** **CIVIL APPEAL NO.338 0F 2013** **AGRICULTURAL AND PROCESSED FOOD PRODUCTS EXPORT DEVELOPMENT AUTHORITY** **(APEDA)…………………………………APPELLANT/RESPONDENT** **-VERSUS-** **KRISH COMMODITIES LIMITED**......**RESPONDENT/APPLICANT** **RULING** ***(on motion dated 6/11/2025)*** 1. Before this Court for determination is the Applicant’s **Motion dated 6/11/2025** brought under Sections 1A, 1B, 3A, and 63(e) of the Civil Procedure Act (Cap 21), and Order 51 Rule 1 of the Civil Procedure Rules seeking an order that the sum of **KShs. 1,221,522.00** deposited in an escrow account pursuant to directions of this Court be released to the Applicant forthwith. It is further sought that the Respondent do facilitate the immediate transfer of the said escrowed funds together with all accrued interest thereon to the Applicant’s Advocates, **Messrs. Zamura & Company Advocates**, as well as costs of the application. 2. The Application is supported by the affidavit of **Elizabeth Muthoni Karanja**, Advocate, sworn on **6/11/2025**, who posits that on **26/4/2017**, this Court delivered a judgment dismissing the Appellant's appeal and awarding costs of the suit to the Applicant. The said costs were subsequently taxed and liquidated at **Kshs. 1,221,522.00/=**. 3. Following an application for stay of execution pending appeal filed by the Appellant on 23/8/2021, this Court granted a conditional stay directing that the principal sum of Kshs. 1,221,522.00/= be deposited into an interest-earning escrow account under the joint control of Counsel for both parties pending the hearing and determination of the intended appeal. 4. The funds were deposited into Family Bank Account No. 038000043490 held in the joint names of *Josephine Wayua Wambua Company and Simba & Simba Advocates, Advocates then on record for the two parties respectifully.* 5. On **3/10/2025**, the Court of Appeal heard and dismissed the Appellant's appeal, thereby affirming the judgment and award of costs in favour of the Applicant. 6. The Applicant contends that with the dismissal of the appeal by the Court of Appeal on 3/10/2025, the condition precedent for holding the funds in escrow has lapsed. As concerns the Applicant, it is averred that no other proceedings are pending before any court save for a mere expression by Respondent that it intends to seek leave to file appeal to the Supreme Court, that as at date of this motion, nothing has been filed. 7. The Respondent was served with the motion and on 23/7/2026 attended court by its Advocate Ms. Tanui intimated to court its intention to come on record for the Respondent post judgment. Counsel was granted an opportunity to regularize her status and to thereafter file objections if any. As at 30/07/2026, the court finds no filings whatsoever in respect thereof on record. That said, the motion stands as unopposed. 1. I have considered the affidavit material placed before the court. 2. It is a fundamental principle of civil jurisprudence that a successful litigant should not be deprived of its fruits of judgment without lawful justification as was held in the case of**Machira t/a Machira & Co. Advocates v. Maghabush Enterprises Ltd [2002] eKLR** 3. Under **Order 42 Rule 6(1)** of the Civil Procedure Rules, an appeal or intention to appeal does not automatically operate as a stay of execution. For an execution process to be arrested, a party must obtain a specific order of stay from a court of competent jurisdiction upon satisfying statutory conditions. 4. The deposit of **Kshs. 1,221,522.00/=** into a joint escrow account was an interim measure granted as security for the due performance of the decree pending the Court of Appeal's determination. The substratum of that conditional stay order was the *pendency* of the appeal. 5. Upon the dismissal of the appeal by the Court of Appeal on 3/10/2025, the underlying appeal came to a final judicial end at that level. In the absence of an order from the Supreme Court or the Court of Appeal staying the enforcement of the decision, the security held in escrow ought to be released to the decree-holder/Applicant forthwith. 6. The Appellant's mere intention to pursue a further appeal to the Supreme Court cannot, in law, act as an embargo against the release of funds. To hold otherwise would be to grant an indefinite, unsanctioned stay of execution in total disregard the Applicant’s right to its judgment proceeds. 7. The escrow account was explicitly ordered to be an *interest-earning account*. The interest accrued thereon is an accretion to the principal security sum set aside for the decree-holder. 8. Since the Applicant has been vindicated on appeal, it is entitled to both the principal sum of Kshs. 1,221,522.00/= and all interest that has accrued in the escrow account over the duration of the deposit. 9. Consequently, the Notice of Motion dated **6/11/2025** is **merited and is hereby allowed in terms stated at prayer 1 and 2 of the application**. 10. **The said funds shall therefore be released and paid into the** **Applicants Advocates Bank account namely;** **ZAMURA AND COMPANY ADVOCATES** **FAMILY BANK** **ACCOUNT NO. O38000044378** **Orders accordingly**. **Delivered Dated and Signed at Nairobi this 31st Day of July 2026.** **……………………….** **JANET MULWA.** **JUDGE**