Mzame v Lalu (Suing as the administrator of the Estate of Allen Warito Lalu – Deceased) & another (Civil Appeal E001 of 2020) [2026] KEHC 13260 (KLR) (2 September 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VOI** **CIVIL APPEAL NO. E001 OF 2020** **CROMWEL MZAME ………………………………………………. APPELLANT** **-VERSUS-** **ZABLON MWANYUMA LALU (suing as** **the administrator of the estate of** **Allen Warito Lalu – deceased).………………………….…... 1ST RESPONDENT** **SALOME YIEKO …………………..……………………...… 2ND RESPONDENT** **RULING** **1.** Before Court is a Notice of Motion dated 13th July 2026 filed by the 1st Respondent. It is brought under Section 1A, 1B and 3A of the Civil Procedure Act and Order 26 and 51 (1) of the Civil Procedure Rules 2010. The Applicant seeks orders against the Appellant: *1.) Spent* *2.) This Honourable Court be pleased to order the branch manager Guaranty Trust Bank Kenya Limited-Mombasa Branch to release the sums held in account number 215/174247/1/5217/6 in the names of Jengo & Associates and SM Righa & Company Advocates to the firm of SM Righa & Company Advocates through his advocate account being SM Righa & Company Advocates whose details are as follows:* ***Bank name : KCB Bank*** ***Account name : S.M.Righa & Company Advocates*** ***Account number : 1126704555*** ***Branch : University Way Branch*** 3.) The costs of this application provided for. 1. The motion is supported by the affidavit of **ZABLON MWANYUMA LALU** sworn on 13th July 2026. The deponent averred that the lower court delivered a judgment in his favor and the Appellant herein being dissatisfied with the same filed this appeal. The Appellant deposited the decretal sum in joint interest earning account in the names of counsels for the Appellant and 1st Respondent. The Appeal was determined partially in favor of the Appellant and the award of damages was varied. The Appellant herein preferred a second appeal to the Court of Appeal Mombasa which appeal was dismissed with costs in favor of the 1st Respondent herein. 2. The Applicant states that no further appeal is available to the Appellant hence he prays that the funds deposited in the joint account as security be released to him. 3. The Respondent filed a replying affidavit sworn by **CROMWELL MZAME** on 16th July 2026 in opposition to the Applicant’s application. The Respondent stated that the Applicant’s application is incompetent and incurably defective as it’s filed without an amendment order of this court. After the Court of Appeal judgment the Appellant filed an application for review of the judgement which was heard on 15th July 2026 and the ruling is due on 12th February 2027. 4. The proceedings in the Court of Appeal have not been conclusively determined hence the security deposited cannot be released to the Respondent. There is no grant to warrant the collection of the deceased’s estate as the only grant available is limited for the purposes of filing a suit hence the court cannot make an order for release of funds as prayed in the application. **ISSUE FOR DETERMINATION** 1. The sole issue for determination is whether this application has merits to warrant the court to exercise its discretion and grant the orders sought by the Applicant. **ANALYSIS** 1. Order 42 Rule 6(2)(b) of the Civil Procedures Rules empowers the Court to order security as a condition for stay pending appeal. The purpose of security 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. Once the appeal is determined and no subsisting order of stay exists, the rationale for retaining the security ends. 2. In **Butt v Rent Restriction Tribunal [1982] KLR 417**, the Court of Appeal emphasized 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. 3. 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. 4. In this case the subordinate court delivered a judgment in favor of the Respondent on 4th November 2020. The Appellant preferred this appeal and obtained a stay of execution order on condition that the security be deposited in a joint interest-earning account. Thereafter, this Court determined the Appeal on 10th March 2022 partially in favor of the Appellant. 5. The Appellant herein was aggrieved by this Court’s judgment and he filed an Appeal at the Court of Appeal Mombasa. He was ordered to deposit half of the decretal amount in a joint interest-earning account pending the hearing and determination of the second appeal. Subsequently, on 24th October 2025 his appeal was dismissed with costs to the 1st Respondent. 6. 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 to show that any order exists restraining the release of the decretal sum. 7. It is well settled in law that a successful litigant should not be deprived of the fruits of a lawful judgement. In **Machira t/a Machira & Co. Advocates vs 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 a just cause. 8. In light of the above foregoing, this Court is satisfied that there is no lawful basis to continue withholding the decretal sum after the Appeal in the Court of Appeal has been conclusively determined. **FINDINGS AND DETERMINATION** 1. In conclusion this court makes the following findings and determination: - 2. The branch manager Guaranty Trust Bank Kenya Limited-Mombasa Branch do hereby release the sums held in account number 215/174247/1/5217/6 in the names of **JENGO & ASSOCIATES ADVOCATE AND SM RIGHA & COMPANY ADVOCATES** to the firm of S.M Righa & Company Advocates through his advocate account being **S.M RIGHA & COMPANY ADVOCATE** whose details are as follows: **Bank name : KCB Bank** **Account name : S.M.Righa & Company Advocates** **Account number : 1126704555** **Branch : University Way Branch** 1. To bring the matter to a close, this Court directs that each party bears its own costs of this application. **DATED, SIGNED AND DELIVERED VIA TEAMS AT VOI THIS 2ND DAY OF SEPTEMBER 2026** **A. MSHILA** **JUDGE** **In the presence of;** Eghwa/Trizah – Court Assistant N/A – for the Applicant Kiwinga – for the 1st Respondent/Applicant