Kamau v Orangi (Civil Appeal E816 of 2024) [2026] KEHC 12584 (KLR) (30 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** **HCCA NO. E816 OF 2024** **JOHN MBIRI KAMAU** ........................ **….... APPELLANT/APPLICANT** **VERSUS** **KENNEDY GICHABA ORANGI** ............................. **..... RESPONDENT** **RULING** 1. This is a ruling on the Notice of Motion application dated 24th June 2026, filed by the Appellant/Applicant, under a Certificate of Urgency of even date, seeking, in substance, an order for the release to him, through his advocates M/s Muluvi Mitau & Associates, of the sum held in this court as security for the due performance of the decree of the trial court, together with the costs of the application. The application is opposed by the Respondent, by way of a Replying Affidavit sworn by his advocate on record, Mr Munyoki Muthangya. 2. The grounds advanced in support of the application, as set out in the Certificate of Urgency and the Supporting Affidavit of counsel of David Tole, are, in summary: that judgment on appeal was delivered on 11th May 2026 dismissing the appeal with costs of Kshs. 100,000/- to the Respondent; that a 45-day stay of execution was granted, lapsing on 25th June 2026; that the Respondent has, through Vintage Auctioneers, already fully executed the lower court's decree by selling the Applicant's motor vehicle and laptops for a sum sufficient to satisfy the decree; that the vehicle was, on the Applicant's valuation, worth considerably more than the decretal sum; that the Respondent has extracted a Certificate of Costs seeking to recover a further Kshs. 100,000/-, resulting, on the Applicant's arithmetic, in an over-recovery of Kshs. 40,492/-; and that continued retention of the security deposit in these circumstances subjects the Applicant to what his counsel describes as "double jeopardy" and an abuse of the court process. 3. The Respondent opposes the application through a Replying Affidavit sworn by his advocate on record, who deposes to being in personal conduct of the matter and therefore competent to swear the affidavit. The Respondent's opposition, in summary, is that: the lawful decree of the trial court remains unsatisfied notwithstanding dismissal of the appeal; execution by way of attachment and sale on 16th September 2025 realised only Kshs. 351,676/-, which went to partly settle the claim of Kshs. 709,508.07/- due as at 28th July 2025, leaving a balance of Kshs. 378,821/- certified due as at 25th November 2025 and continuing to attract interest; the said execution was a direct consequence of the Applicant's own default in complying with the conditions of stay set by this court; the Applicant's reliance on a valuation of the motor vehicle dated 2024 is misconceived, since the execution was in fact undertaken in September 2025 and did not realize anything close to that value; the Applicant has never challenged the auction process before the trial court which sanctioned it, and cannot do so collaterally in this application; the funds deposited in court were security for due performance of the decree, which performance has not been demonstrated; and that the Respondent, holding an unsatisfied Certificate of Costs for Kshs. 100,000/-, is entitled to have the security released to him in part-settlement of the outstanding balance, accrued interest and costs. 4. The dispute has its origin in *Milimani Small Claims Court SCCC No. 4270 of 2023*, in which the Respondent sued the Applicant for general and special damages arising from a road traffic accident. By a judgment delivered on 28th June 2024, Hon. J.W. Munene, Resident Magistrate/Adjudicator, awarded the Respondent general damages of Kshs. 500,000/-, special damages of Kshs. 19,050/-, plus costs and interest at court rates. 5. Aggrieved, the Applicant lodged an appeal, HCCA No. E816 of 2024. while the appeal remained pending, the Respondent, through his agent, Vintage Auctioneers, proceeded to attach and, on 16th September 2025, sold motor vehicle registration number KCV 342N together with the two laptops. The parties are sharply at odds as to the effect of that sale. The Applicant contends, relying on a valuation report dated 20th November 2024 which placed the value of the motor vehicle at Kshs. 850,000/-, that the Respondent has already recovered and indeed over-recovered the entire decretal sum of Kshs. 709,508.07/- said to have fallen due as at 28th July 2025, together with the costs of the appeal, such that any further exaction from him would amount to unjust double recovery. 6. The Respondent, for his part, deposes on oath that the auction realized only Kshs. 351,676/ which sum was applied to part-satisfy the claim of Kshs. 709,508.07/-, leaving a balance of Kshs. 378,821/- certified due as at 25th November 2025 by way of a Notice to Show Cause, a sum which he says continues to attract interest. 7. My Brother Hon. Justice Francis Olel heard and, on 11th May 2026, dismissed the appeal further assessing and capping the costs of the appeal at Kshs. 100,000/-, all-inclusive, and granted a stay of execution of that judgment for forty-five (45) days, a period which lapsed on 25th June 2026. The Respondent subsequently extracted a Certificate of Costs on 14th May 2026 and issued on 8th June 2026 in respect of the said Kshs. 100,000/-, which he says remains unsatisfied. 8. It is against this backdrop that the Applicant, one day before expiry of the 45-day stay, filed the present application, essentially on the footing that the Respondent has already been paid in full, and more, from the proceeds of the September 2025 auction, and that it would be an abuse of the process of court to permit him to retain the security deposit or enforce the Certificate of Costs in addition. 9. I observe, in passing, that the Notice of Motion and the supporting papers are not entirely internally consistent as to the precise figure said to be held in court as security. More than one amount appears at different points of the record. Nothing in this ruling turns on that discrepancy, since what falls for determination is not the quantum but the destination of whatever sum is, in fact, held to the credit of this cause. That sum is readily ascertainable from the court file and the Deputy Registrar's records. 10. Having considered the application, the affidavits and annexures filed by both parties, and the record of this appeal, I find that the following issues fall for determination: 11. **Whether it is open to this court to determine *whether the decree has been satisfied?*** 12. ***The legal character and purpose of the sum deposited in court as security for due performance of the decree, and what becomes of it now that the appeal has been dismissed;*** 13. ***Whether, in consequence, the Applicant is entitled to the orders sought;*** 14. ***Who should bear the costs of the application.*** **E. ANALYSIS AND DETERMINATION** ***(a) Which forum determines whether the decree has been satisfied?*** 1. The Applicant's case, at its core, invites this court to find, as a matter of fact, that the decretal sum together with the costs of the appeal have already been more than recovered by the Respondent through the September 2025 auction, and that the security deposit and the Certificate of Costs are accordingly spent. That is a factual inquiry going to the ***discharge or satisfaction of a decree***, and the law on where such an inquiry belongs is well settled. 2. ***Section 34(1) of the Civil Procedure Act (Cap. 21)*** provides: ***“All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit”.*** 1. The Court of Appeal applied this very principle in ***Kuronya Auctioneers v Maurice O. Odhoch & another [2003] eKLR***, holding that section 34 confines execution disputes between the parties, or their agents, to the executing court and bars their ventilation in a separate forum. 2. The record before me does not include any ruling, order, or auctioneer's return of the trial court confirming, as the Applicant would have it, that the September 2025 auction realized the full appraised value of Kshs. 850,000/-, still less that the decree and the costs of the appeal have in consequence been satisfied. 3. What is before me, on affidavit, is a direct conflict. The Applicant relies on a valuation report almost a year old at the date of sale; the Respondent, through counsel with personal conduct of the matter, deposes on oath that the auction realized Kshs. 351,676/-considerably below the appraised value, leaving a certified balance of Kshs. 378,821/-. 4. I would add that the Respondent's uncontroverted averment that the Applicant has never moved to challenge the conduct or adequacy of the September 2025 sale before the trial court which sanctioned it is significant. Execution once concluded and left unchallenged before the appropriate forum acquires a measure of finality. 5. The Court of Appeal held in ***Kenya Broadcasting Corporation v Geoffrey Wakio [2019] eKLR*** that a court becomes functus officio once its proceedings are fully concluded and its orders perfected, save for matters incidental to, or a natural consequence of, the final decision. 6. Applying that reasoning, if the Applicant considered the September 2025 execution irregular or excessive, the proper and timely course was to raise that grievance whether by objection, an application to set aside the sale, or otherwise before the court whose process was impugned, and not, nine months later, as an incident of an unrelated application before this court. 7. In due consideration of the above, I find I am not equipped, on this application, and sitting on the post-judgment side of this appeal, to resolve that conflict of fact. That task belongs to the court that sanctioned and supervised the execution, which alone holds the warrants, proclamation, and sale records necessary to verify what was, in truth, realized and applied. ***(b) The alleged execution in defiance of the order of 29th July 2025*** 1. The Applicant's papers suggest, without great clarity, that the September 2025 execution proceeded in the teeth of this court's order of 29th July 2025 staying execution and restraining disposal of the motor vehicle and laptops. The Respondent's position, which on the material before me is the more probable, is that the stay was conditional, that the Applicant defaulted on the conditions attached to it, and that the execution which followed was a direct consequence of that default. 2. This is consistent with the ordinary practice of this court in framing conditional stay orders — illustrated, for instance, in ***Pambazuka Mart (K) Ltd v Javed (Civil Appeal E018 of 2023) [2024] KEHC 5451 (KLR)*** where such orders routinely provide that, in default of compliance with the stipulated conditions within the timelines given, the stay automatically lapses and the decree-holder is then at liberty to execute. 3. Neither party placed before me the order of 29th July 2025 itself, nor the outcome of the further Application dated 28th August 2025 in which, on the Respondent's account, these very issues were litigated. Without that material, I decline to find, on a balance of probabilities, that the execution was unlawful; and, in any event, for the reasons already given, any such finding is, at this stage, one for the trial or executing court and not for this court on this application. ***(c) The nature and purpose of the security, and its destination now that the appeal has failed*** 1. This brings me to the heart of the matter: the sum deposited in court, described in the application as ***"the security deposit,"*** which the Applicant seeks released to him. That deposit was ordered as a condition of stay of execution pending appeal, pursuant to Order 42 Rule 6 of the Civil Procedure Rules, 2010, which permits this court to stay execution of a decree appealed from on condition, among others, that the applicant furnishes such security as the court orders for the due performance of the decree or order as may ultimately be binding on him. 2. The purpose of security ordered under Order 42 Rule 6 is well settled. ***In Arun C Sharma v Ashana Raikundalia t/a A. Raikundalia & Co. Advocates & 2 others [2014] eKLR, Gikonyo, J.*** held that such security exists to guarantee the due performance of the decree that may ultimately bind the applicant, and that it is not intended to punish the judgment debtor. That formulation has since been consistently applied, including in **Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] eKLR and, more recently, in Alginza Automobiles Limited v Mulei; Muisyo & another (Civil Appeal E077 of 2021) [2025] KEHC 6920 (KLR),** where the court reiterated that security under Order 42 Rule 6 exists to hold the balance between an appellant's right to pursue an appeal without first paying out a decretal sum he may never recover, and a respondent's right, should the appeal fail, to the fruits of a judgment already obtained. 3. It follows, necessarily, that where as in the instant application, the appeal fails, the balance so struck resolves decisively in favour of the decree holder. This court has repeatedly made the point that requiring security exists precisely to avoid a situation in which a successful respondent must return to the status quo and commence fresh execution after having already prevailed both at trial and on appeal, and that, upon dismissal of an unsuccessful appeal, the deposited sum is ordinarily released to the respondent **(see, *Pambazuka Mart (K) Ltd v Javed* (supra)).** 4. The security is not a fund held for the eventual benefit of an unsuccessful appellant, it is held against the contingency of his failure, and once that contingency has materialized, as it has here, the appeal having been dismissed on 11th May 2026, the security falls to be applied for the benefit of the party it was always intended to protect. 5. I have not lost sight of the Applicant's central complaint, namely, that requiring him to surrender the security deposit, in addition to what he says is a successful recovery by the Respondent of the decretal sum from the auction, exposes him to double recovery, double satisfaction or unjust enrichment. 6. So understood, it is a legitimate concern, and had the Applicant been able to demonstrate, through an order of the executing court or an unchallenged auctioneer's return, that the decree and the costs of the appeal have in fact been paid in full, this court would not hesitate to protect him from further exaction. For the reasons given above, however, that demonstration has not been made, and the sworn evidence before me which I have no proper basis to disregard in favour of an untested valuation report is that a substantial balance of the decretal sum remains outstanding, in addition to the separate and admittedly unsatisfied Certificate of Costs for Kshs. 100,000/- arising from dismissal of the appeal itself. 7. Accordingly, mindful of the overriding objective under sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution, the proper course is to dismiss the application. The security deposited in court shall remain applied in accordance with the earlier directions, without interference, leaving the Applicant at liberty to pursue any dispute as to the balance due before the executing court. This ensures that the matter is determined substantively in the correct forum, while preserving the integrity of the appellate process. 8. This is without prejudice to the Applicant's right to have the exact balance remaining due, after all applicable credits, determined by the trial or executing court under section 34 of the Civil Procedure Act, should that figure remain in dispute. ***(d) Costs*** 1. Costs are, by section 27(1) of the Civil Procedure Act, in the discretion of the court, but ordinarily follow the event save for good reason shown to the contrary (***Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others*, Petition No. 4 of 2012, [2014] eKLR).** 2. The principle exists to compensate a successful litigant for the trouble and expense of defending proceedings, and not to penalise the losing party ***(Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR).*** The Respondent has been substantially successful in resisting this application, and I see no good reason to depart from the general rule. **DISPOSITION** 1. Premised upon the foregoing reasons, the orders that commend themselves to this court are as follows: 2. ***The Notice of Motion application dated 24th June 2026 is hereby dismissed.*** 3. ***The sum held in court to the credit of this cause as security for due performance of the decree shall remain as deposited, without interference or directions from this Court. The parties retain liberty to pursue any questions concerning execution or the outstanding balance before the appropriate forum.*** 4. ***For the avoidance of doubt, this Court makes no determination on the application for release of the sums deposited as security. Any dispute as to the precise balance, if any, remaining due on the decree after crediting the proceeds realized from the auction sale of 16th September 2025 shall be pursued before the proper forum in accordance with section 34 of the Civil Procedure Act.*** 5. ***The costs of this application shall be borne by the Applicant.*** 6. ***It is so ordered.*** **DELIVERED, SIGNED AND DATED AT NAIROBI** **THIS 30TH DAY OF July 2026.** **MWANAISHA. S. SHARIFF** **JUDGE**