https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10735

Gachago & another v Wambura (Civil Appeal E007 of 2023) [2026] KEHC 10735 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 10735 (KLR) Republic of Kenya In the High Court at Kerugoya Civil Appeal E007 of 2023 EM Muriithi, J May 14, 2026 Between Joseph Kabui Gachago 1st Appellant Bonface Njoroge Kiburi 2nd Appellant and Benson Wachira Wambura Respondent Ruling Background 1.This matter has been marked with a regrettable failure on the part of the appellant to comply with the directions of the Court from the terms of stay of execution pending appeal. When matter came up for directions as to hearing of the appeal on 15/2/2024 in the presence of Counsel Mr. Kabita and Mr. Mutua, the Court directed that the appeal be canvassed by way of written submissions each side taking 21 days to file written submissions and mention for compliance was set for 20/5/2024. 2.Despite multiple mentions before the Court and the Deputy Registrar for confirmation of filing of the written submissions on the appeal thereafter on 20/5/2024, 28/6/2024, 5/7/202412/7/2024, 28/3/2025, 9/7/2025 and 28/7/2025, the appellant did not file submissions on the appeal. The Respondent’s Counsel invariably explained that she could not file submissions for the Respondent before being served with the appellant’s submissions so as to respond to them in her set of submissions. 3.On the 9/7/2025 in presence of the Counsel for the parties – Mr. Njuguna for Mr. Kabita for the Appellant Mr. Mutua for the Respondent the Court minuted that –“Court:1.Appellant to file submissions within seven (7) days.2.In default, appeal to stand dismissed.3.Mention on 28/7/2025.” 4.On 28/7/2025, there were no submissions filed by the appellant and the Court minuted its decision that “As there are no submissions filed in accordance with the order of 9/7/2025, the appeal stands dismissed.” Application before the Court 5.By the present application by Notice of Motion dated 9/1/2026 expressed to be brought under Sections 1A, 1B, 3, 3A, 38, 80, and 98 of the Civil Procedure Act and Order 45 rule 1 and Order 51 rule 1 of The Civil Procedure Rules), the Respondent seeking specific relief as follows:“ORDERS:-1.That the Court be pleased to review and/or set aside the orders of stay of ~ execution granted on 23.02.2023;2.That the Court be pleased to order the release and/or transfer of funds held in the joint bank account at Equity Bank of Kenya, Community Corporate Branch in the names of S. N. Ngare & Co. Advocates and Kimondo Gachoka & Co. Advocates, account number 018xxxxxxxx36, exclusive of any requisite bank charges, to the Respondent/Applicant through his advocates, S. N. Ngare & Co. Advocates, to the following account:a)ACCOUNT NAME S. N. NGARE & CO. CLIENT A/Cb)A/C NO. 010xxxxxxxx00c)BANK STANDARD CHARTERED BANKd)BRANCH - HARAMBEE AVENUEe)BANK CODE - 02xxx73.That in the alternative to prayer 2 above, the Court be pleased to grant the Deputy Registrar power and authority to execute any document necessary to facilitate the release and/or transfer aforesaid;4.That the Court be pleased to make any other orders as mete in the circumstances.5.Costs of the application be provided for.” 6.The application is based on grounds set out in the application as follows:“(a)That by dint of an order issued on the 23.02.2023, this Court ordered theAppellants/Respondents, as conditional stay of execution, to deposit the entire decretal sum in a joint interest earning account, in the names of both counsels on record.'(b)The Appellants/Respondents duly complied and opened a joint account at Equity Bank of Kenya, Community Corporate Branch in the names of S. N Ngare & Co. Advocates and Kimondo Gachoka & Co. Advocates, account number 018xxxxxxxx36:(c)As further compliance, the Appellants/Respondents deposited Kshs.784, 896/= in the aforesaid account on the 28.04.2023:(d)The stay of execution was granted during the pendency of this appeal,'(e)That the Appellants/Respondents failed to file submissions as directed by the Court, and the appeal was marked as dismissed on the 28.07.2025,'(f)Despite there being no pending appeal, the Appellants/Respondents have failed and/or refused to co-operate to have the funds deposited in the joint account released and/or transferred to the Respondent/Applicant,'(g)lt is thus in the interest of justice that the orders sought be granted since there is no subsisting appeal, and(h)That the Appellants/Respondents will not be prejudiced in any way if the orders e sought are granted.” 7.When the application came up for hearing on 16/3/2026 in the presence of counsel for the parties – Ms. Wanyingi for Mr. Kabita for the Appellant and Mr. Mutua for the respondent, the Court reset the hearing to 8/4/2026 to allow the appellant who was the Respondent to the application to file a replying Affidavit which he was directed to do in seven (7) days. 8.On 8/4/2026 in the presence of Counsel for the Parties - Ms. Wanyingi for Mr. Kabita for the appellant and Mr. Mutua for the Respondent, the Court granted the appellant on their request opportunity to file a replying affidavit and set the matter for Ruling on 16/4/2026 [subsequently postponed to 14/5/2026], as follows:“8/4/2026E.M. Muriithi, J.C/A Florence / MuchukuCounsel Present:Mr. Mutua for the Respondent/applicantMs. Wanyingi Mr. Kabita for the Appellant/respondentMs. WanyingiI apologize. Mr. Kabita has been unwell. He has now prepared a Replying Affidavti and is about to file response in the e-filing portal.Mr. MutuaThere is no sufficient reason [for failure to file a response].Court:1.Ruling on 16/4/2026.2.Replying Affidavit to be filed today [as intimated].” 9.Despite the opportunity granted to file the Replying Affidavit, the appellant did not file a Replying Affidavit as intimated or at all and as at 30/4/2026, there being no replying affidavit filed, the Court embarked on consideration of the matter without the response by the appellant. 10.The Court finds that the application is not opposed. However, on the merit of the application, there being no appeal pending following the order of Court made on 28/7/2025 marking the appeal dismissed for want of prosecution by failure to file submissions thereon, the Respondent’s application for release of funds deposited as security for stay of execution pending appeal is unanswerable. 11.Consequently, the reliefs sought in the Notice of Motion dated 9/1/2026 will be granted. Orders 12.Accordingly, for the reasons set out above, he Court finds merit in the application dated 9/1/2026 and makes Orders as follows: 13.The Notice of Motion dated 9/1/2026 is granted in terms of Prayers Nos. 1, 2 and 3 thereof. 14.The appellant shall pay the costs on the application to the Respondent.Orders accordingly. DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.EDWARD M. MURIITHIJUDGEAppearances:Mr. Kabita for the Appellant.Mr. Mutua for the Respondent.