https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9473

Gitau & another v Dame (Civil Appeal E483 of 2021) [2026] KEHC 9473 (KLR) (Civ) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 9473 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E483 of 2021 AC Mrima, J June 23, 2026 Between Samuel Njoroge Gitau 1st Appellant Eastleigh Route Sacco Limited 2nd Appellant and Zeinab Kilta Dame Respondent Ruling 1.This ruling is in respect of the Notice of Motion dated 16th July 2024 which seeks the following orders: -i.Spent;ii.That the Honourable Court be pleased to grant leave to the firm of Kairu & Mccourt Advocates to come on record as advocates for the Defendant/Applicant herein in place of the firm of Kimondo Gachoka & Company AdvocateS;iii.Spent;iv.That this honorable court be pleased to vacate and/or set aside the warrants of attachment dated 9/10/2024 as the same is irregular and/or illegal;v.That the sum of Kshs. 300,000.00 deposited in court as security pending hearing and determination of the appeal be released to the Respondent herein;vi.That this Honourable Court be pleased to order the unconditional release of the attached motor vehicle registration number KBY 721R;vii.That pursuant to paragraph 5 above this court be pleased to grant an order to the Applicant of police assistancé in the event the Respondent refuses to release the motor vehicle;viii.That this Honourable Court do make any such further and/or other orders and issue any other relief it may deem just to grant in the interest of justice;ix.That the costs of this Application be borne by the Respondent. 2.The application was supported by the grounds on the face of it and the affidavit of Counsel sworn on even date. Counsel avers that they deposited the sum of Kshs. 300,000/= as security in the appeal. Further that the decretal sum was Kshs. 981,149.00/= and that they have already payment for the sum of Kshs. 681,149.00/=, leaving a balance of Kshs. 300,000/= which the Respondent is to collect from the Court. He avers that the Respondent has attached the 1st Applicant’s motor vehicle Registration number KBY 721R. 3.Additionally, he avers that his efforts to have the Respondent consent to the release of the monies deposited in Court have been futile as the Respondent has not executed the necessary letter. For these reasons, he urges this Court to grant the orders sought as the Applicant continue to suffer irreparable loss. To buttress the application, they filed written submissions dated 15th August 2025 emphasizing that it is in the interest of justice that the orders sought be granted. 4.The Respondent is opposed to the application through a Replying Affidavit of her Counsel, Mr. Nelson Kaburu, sworn on 31st July 2025. He avers that the Applicants have filed several applications at the trial Court seeking similar orders. He emphasized that these applications have since been dismissed. He further avers that the Applicants have been requested to pay the pending sums first before they can collect the sums deposited in Court but have refused to do. In their submissions dated 14th October 2025, the Respondent contended that the amounts owed are the balance of Kshs. 300,000/=, Kshs.115,000/= being the costs of the appeal awarded in the judgment, interest and the auctioneer and storage charges. 5.The Respondent urges this Court to release the deposited sums to them. 6.This Court has carefully considered this application more so since this is an old matter. On 30th July 2025, this Court ordered the application be served upon the firm of Messrs. Kimondo Gachoka & Company Advocates, who were then on record for the Applicants. There seems to be no evidence of compliance with that order. 7.Be that as it may, even if this Court were to consider the application on its merits, still there is an issue which is quite unsettling. That is the Applicants’ adamance to secure the release of the attached motor vehicle despite not fully satisfying the judgment of the Court. Apart from the sums already paid and duly accepted by the Respondent and the sums deposited in Court, there is no doubt that the Applicants are yet to satisfy the costs of the appeal awarded in the judgment among other incidentals. On a like application before the trial Court, the Applicants were ordered to pay the costs so as to pave to the release of the vehicle. That seems not to have happened since then. 8.The Applicants ought to simply do what is required of them, that is, to fully satisfy the decree. The converse may lead to further litigation, escalation of costs and depreciation of the attached vehicle. This Court believes that the Applicants will reconsider their position going forward. Given the Applicants’ conduct and considering the age of the matter, this Court does not find favour with the application. 9.Consequently, the following orders do hereby issue: -(a)The Notice of Motion dated 16th July 2024 is hereby dismissed with costs assessed at Kshs. 25,000/= [Read: Kenya Shillings Twenty-Five Thousand Only].(b)The sum of Kshs. 300,000/= deposited in Court be forthwith released to the firm of Nelson Kaburu & Company Advocates.(c)The order of stay of execution in force is hereby discharged and/or set-aside forthwith.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 23RD DAY OF JUNE, 2026.A. C. MRIMAJUDGERuling virtually delivered in the presence of:No appearance for, Learned Counsel for the Applicants.Mr. Kaburu, Learned Counsel for the Respondent.Michael/Amina – Court Assistants.