https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12105

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAROK** **CIVIL APPEAL NO. E014 OF 2024** **(CORAM: HON. CHARLES M. KARIUKI – J)** **AYAN AUTOMOBILES LIMITED....................................... APPELLANT /RESPONDENT** **-VERSUS** **BEATRICE WANJIKU MURIITHI.........................................RESPONDENT/APPLICANT** **RULING** 1. **INTRODUCTION** 2. Before the Court is the Respondent/Applicant's Notice of Motion dated 16th January 2026 seeking the release of the decretal sum of Kshs. 1,056,000/= together with the accrued interest deposited in a joint interest-earning account at HFC Bank as security for a stay of execution pending the determination of this appeal. The application follows the dismissal of the appeal by this Court and the expiry of the twenty-one-day stay granted upon delivery of the appellate judgment. 3. The Appellant/Respondent opposes the application because there are pending proceedings before the subordinate court seeking to enjoin an alleged beneficial owner of the accident motor vehicle and that HFC Bank, not being a party to these proceedings, cannot be compelled to release the deposited funds. 4. The Court is therefore called upon to determine whether, in the circumstances of this case, the security deposited pending appeal ought to be released to the successful litigant. 5. **PLEADINGS** 6. **Notice of Motion** 7. The Notice of Motion dated 16th January 2026 seeks orders for the release to the firm of M.J. Nyambura & Associates Advocates of the decretal sum of Kshs. 1,056,000/= deposited in an interest-earning account at HFC Bank as security pending appeal, together with all accrued interest. The Applicant further seeks orders directing the Bank Manager and all relevant officers of HFC Bank to execute the necessary documents to facilitate the release of the deposited funds and interest, with costs of the application. 8. **Supporting Affidavit** 9. The application is supported by the affidavit of Nyambura Mukiri, Advocate, sworn on 16th January 2026. The deponent states that the Respondent/Applicant had successfully obtained judgment in the subordinate court on 23rd May 2024 for Kshs. 1,057,400/= together with costs in respect of injuries sustained in a road traffic accident that occurred on 17th April 2022 along the Mai Mahiu–Narok Road. 10. Following the judgment, the Appellant obtained a conditional stay of execution pending appeal on the basis that the decretal sum be deposited in a joint interest-earning account. It is deposed that the appeal was dismissed with costs on 28th November 2024, although the Court granted the Appellant a stay of twenty-one days, which expired on 19th December 2024. 11. According to the deponent, no further stay of execution was obtained, and no appeal was lodged before a higher court. Consequently, the continued retention of the deposited funds is unjustified, and the decretal sum together with the accrued interest ought to be released to the Applicant through her advocates to enable her to enjoy the fruits of her judgment, particularly as she requires further medical treatment, including the removal of metal implants and fitting of dentures. The deponent therefore urges the Court to allow the application as fair and just in the circumstances. 12. **Replying Affidavit** 13. In the replying affidavit sworn on 1st July 2026, Nicholus Ngoli Inyangala, the Appellant's Sales Manager, opposes the application for release of the decretal sum and accrued interest. He deposes that although the funds are held in an account at HFC Bank, the bank has neither been joined as a party to the proceedings nor subjected to any proceedings capable of compelling it to release the funds. Consequently, he contends that the Court lacks jurisdiction to issue orders against a non-party, rendering the prayers directed at the bank incompetent. 14. The deponent further avers that the Appellant has initiated proceedings before the trial court seeking to set aside the judgment and to enjoin Alice Wairimu Mungai, whom it alleges was in possession and control of the accident motor vehicle at the time of the accident and whose insurer ought to satisfy any decretal liability. He maintains that no vicarious liability has been established against the Appellant and that the issue of ownership and liability remains unresolved. 15. According to the deponent, releasing the decretal sum before the determination of those proceedings would prejudice the Appellant and the intended third party, contrary to the principles of natural justice and the constitutional right to a fair hearing under Articles 40 and 50 of the Constitution. He asserts that ownership and liability require full evidentiary determination, relying on **Lake Flowers v Cila Franklyn Onyango Ngonga. He urges** the Court to dismiss the application in the interests of justice, fairness, and the protection of the Appellant's proprietary rights. 16. **SUBMISSIONS** 17. **Respondent/Applicant’s submissions** 18. In her written submissions, the Applicant contends that the application dated 16th January 2026 is unopposed and seeks the release of the decretal sum of Kshs. 1,056,000/= together with the accrued interest deposited in a joint interest-earning account as security pending appeal. Counsel submits that the sole issue for determination is whether the Applicant is entitled to the release of the deposited funds following the determination of the appeal. 19. It is submitted that the Applicant successfully obtained judgment in the subordinate court for damages arising from a road traffic accident and that, upon the Appellant filing the present appeal, this Court granted a conditional stay of execution on the basis that the decretal sum be deposited in a joint interest-earning account. Counsel argues that the appeal was subsequently heard and dismissed with costs, after which the Court granted a stay of execution for only twenty-one days. Since that stay has long lapsed and no further stay orders have been obtained, it is submitted that the purpose for which the security was deposited has been fulfilled and there is no legal basis for the continued retention of the funds. The Applicant therefore urges the Court to order the release of the decretal sum together with the accrued interest to her advocates, M.J. Nyambura & Associates, to enable her to enjoy the fruits of her successful judgment. No judicial authorities were cited in support of the submissions. 20. **Appellant/Respondent’s Submissions** 21. In its written submissions, the Appellant/Respondent opposes the Notice of Motion dated 16th January 2026, arguing that the application for release of the decretal sum and accrued interest is premature and ought to be dismissed. Counsel submits that although the appeal was dismissed, there remains a pending application before the subordinate court seeking to enjoin Alice Wairimu Mungai as a third party on the basis that she was the beneficial owner and person in possession of motor vehicle registration number KCV 471Y at the time of the accident. It is contended that the third-party proceedings were initiated before the delivery of judgment in the lower court and are intended to ensure that all parties necessary for the just determination of liability are heard. Consequently, releasing the funds before the determination of the third-party application would occasion prejudice to the Appellant and undermine its constitutional rights to property under Article 40 and to a fair hearing under Article 50 of the Constitution of Kenya, 2010. 22. In support of its position, the Appellant relies on **Jackson Mutunga & Another v Douglas Kisoi Mutua [2019] KEHC 5724 (KLR),** where the High Court held that an application brought before the appropriate procedural steps had been undertaken was premature, emphasizing that where decretal sums are secured in an interest-earning account no prejudice is occasioned by maintaining the status quo pending the proper determination of the proceedings. On the strength of that authority, the Appellant submits that the decretal sum should remain in the joint interest-earning account until the pending third-party proceedings are concluded and urges the Court to dismiss the application with costs. 23. **ISSUES FOR DETERMINATION** 24. Having considered the Motion, the affidavits filed, and the rival submissions of counsel, the Court is of the respectful view that the application raises the following issues for determination: 25. **Whether the Respondent/Applicant is entitled to the release of the decretal sum and accrued interest deposited as security pending appeal.** 26. **Whether the pendency of proceedings in the subordinate court or the failure to join HFC Bank as a party bars the grant of the orders sought.** 27. **ANALYSIS AND DETERMINATION** 28. **Whether the Respondent/Applicant is entitled to the release of the decretal sum and accrued interest deposited as security pending appeal** 29. The law governing security deposits pursuant to an order of stay pending appeal is settled. Security is not an end in itself. Its purpose is to preserve the decretal sum during the pendency of the appeal and to protect the successful party against the risk of an unsuccessful appellant being unable to satisfy the decree if the appeal fails. 30. Order 42 Rule 6(2)(b) of the Civil Procedure Rules empowers the court to order security as a condition for a stay of execution pending appeal. Such security serves only as a guarantee for the due performance of the decree should the appeal ultimately fail. Once the appeal is determined and no subsisting order of stay exists, the rationale for retaining the security ends. 31. The Court of Appeal in **Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] eKLR** observed that security furnished under Order 42 Rule 6 exists solely to secure due performance of the decree pending appeal and is not intended to deny a successful litigant the enjoyment of the fruits of their judgment once the appeal is concluded. 32. Similarly, in **Butt v Rent Restriction Tribunal [1982] KLR 417**, the Court of Appeal emphasised that a stay of execution is a discretionary remedy intended to balance the competing rights of the parties and should not be exercised in a manner that unjustifiably deprives a successful litigant of the fruits of a lawful judgment. 33. The record before the Court is not disputed. The subordinate court delivered judgment in favour of the Respondent/Applicant on 23rd May 2024. The Appellant preferred this appeal and obtained a stay of execution on condition that the decretal sum be deposited in a joint interest-earning account. Thereafter, this Court dismissed the appeal on 28th November 2025, awarding costs to the Respondent/Applicant, and granted a temporary stay of execution for twenty-one days. 34. The Appellant has not demonstrated that any further stay of execution has been granted by this Court or by any superior court. Equally, no evidence has been placed before the Court that a second appeal has been filed or that any order exists restraining the release of the decretal sum. 35. The inevitable consequence is that the conditional stay granted by this Court lapsed upon expiry of the twenty-one-day period. Once that occurred, the Respondent/Applicant became entitled to execute the decree and to enjoy the fruits of the judgment. 36. The principle that a successful litigant should not be deprived of the fruits of a lawful judgment has long been recognised. In **Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] KLR 63**, Kuloba J. aptly stated that A successful party is entitled to the fruits of his judgment and should not be deprived of them except for just cause. 37. This Court finds no lawful basis to continue withholding the decretal sum after the appeal has been conclusively determined. 38. **Whether the pendency of proceedings before the subordinate court or the non-joinder of HFC Bank bars the grant of the orders sought** 39. The Appellant contends that the decretal sum should be preserved because a pending application before the subordinate court seeks to enjoin Alice Wairimu Mungai as a third party and to reopen issues relating to ownership of the motor vehicle involved in the accident. 40. First, this Court rendered its appellate judgment dismissing the appeal. That judgment remains valid, binding, and enforceable unless and until it is reviewed or set aside by a court of competent jurisdiction. A pending application before the subordinate court cannot suspend or defeat a decree that has already been affirmed on appeal. 41. Secondly, the intended third-party proceedings are entirely separate from the present application. No order has been exhibited staying execution of the decree on account of those proceedings. Courts do not act on speculation that a future application may eventually alter an existing judgment. 42. The reliance placed on **Jackson Mutunga & Another v Douglas Kisoi Mutua [2019] KEHC 5724 (KLR)** is misplaced. That decision concerned an application deemed premature because the procedural steps necessary for the dismissal of an appeal had not been undertaken. The present circumstances are fundamentally different. Here, the appeal has already been heard and conclusively determined. There is therefore nothing premature about seeking release of security that had been deposited solely for purposes of that appeal. 43. The Appellant further argues that HFC Bank has not been joined as a party, and therefore no orders may be issued affecting it. 44. The account was opened pursuant to an order of this Court as security pending appeal. The bank is merely the custodian of funds deposited pursuant to judicial orders. Any consequential order directing release of those funds is directed at implementing the Court's own orders. Such an order does not determine any substantive rights of the bank that would require its participation as a litigant. 45. Courts routinely issue consequential directions to financial institutions holding monies pursuant to court orders without requiring those institutions to be joined as substantive parties. The bank has no proprietary interest in the deposited funds; it merely holds them as a stakeholder pending the Court's directions. 46. The Appellant also invokes Articles 40 and 50 of the Constitution. 47. Those constitutional provisions do not avail the Appellant. Article 40 protects lawful property rights but does not shield a judgment debtor from satisfying a lawful decree that has been affirmed on appeal. Likewise, Article 50 guarantees the right to a fair hearing. The Appellant has already enjoyed that right both before the subordinate court and before this appellate court. The mere existence of intended or pending proceedings elsewhere cannot justify withholding payment under an existing decree absent a lawful stay. 48. The Court is therefore satisfied that none of the objections advanced by the Appellant constitutes a legal impediment to the release of the decretal sum together with the accrued interest. 49. **DISPOSITION** 50. Consequently, the Notice of Motion dated 16th January 2026 is meritorious and is hereby allowed. 51. Accordingly, the Court makes the following orders: 52. **The decretal sum of Kshs. 1,056,000/= deposited in the joint interest-earning account at HFC Bank, together with all accrued interest, shall forthwith be released to M.J. Nyambura & Associates Advocates for onward transmission to the Respondent/Applicant.** 53. **The Manager and/or authorised officers of HFC Bank shall execute all necessary documentation and take all steps required to facilitate the release of the decretal sum and the accrued interest in compliance with this order.** 54. **The Respondent/Applicant shall have the costs of the application.** 55. It is so ordered. **DATED, SIGNED, AND DELIVERED AT NAROK, THIS 30TH DAY OF JULY, 2026.** **CHARLES KARIUKI** **JUDGE**