https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11993

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEL NO. 126 OF 2019** **JOBU MUTHIGANI** ………………….…………..……..…..……. **APPELLANT** **VERSUS** **SHADRACK MACHARIA NDEKERE …………………….…1ST RESPONDENT** **MBAABU JACOB JULIUS …………………………………. 2ND RESPONDENT** **RULING** **Background:** 1. This appeal emanated from Maua CMCC No. 62 of 2018. 2. Judgment was delivered on 20/09/2019. The appellant then filed the present appeal which culminated in a judgment delivered by this court (Hon. Justice T.W Cherere) on 20th May 2021 which set aside the lower court’s judgment. The court made the following orders: - 3. A declaration be and is hereby issued that the transfer of motor vehicle KCA 496W by Shadrack Macharia Ndekere to himself was illegal, unlawful and fraudulent. 4. Having illegal repossessed and unlawful and fraudulent transferred motor vehicle KCA 496W to himself, Shadrack Macharia Ndekere (1st respondent) shall refund Kshs.600,000/= to Mbaabu Jacob Julius (2nd respondent) that was admittedly paid for purchase of the said motor vehicle KCA 496W, since it is not practicable to restore the said vehicle to Mbaabu Jacob Julius (2nd respondent) 5. Shadrack Macharia Ndekere (1st respondent) shall refund Kshs.100,000/= to Jobu Muthigani (appellant). 6. A declaration be and is hereby issued that both Jobu Mutigani (appellant) and Shadrack Macharia Ndekere (1st respondent) breached the agreement dated 12/01/2018 and none is entitled to pay the other Kshs.400,000/= of the consideration price being the liquidated loss. 7. The sums in (ii) and (iii) shall attract interest at court rates from the date of judgment in the lower court. 8. Shadrack Macharia Ndekere (1st respondent) shall bear the costs of this appeal and of the proceedings in the trial court. 9. The 1st respondent then moved the court with an application dated 9th June 2022 which sought a review of the judgment. The same was dismissed. 10. The appellant filed his bill of costs, which was taxed at Ksh. 175,224/=. 11. Vide an application dated 28th July 2025, the appellant sought the following orders: 12. That the application be and is hereby certified urgent. 13. That the security for costs of Kshs.300,000/= deposited in court on 24/06/2022 or thereabout be and is hereby released to the appellant through his advocate forthwith. 14. That the 1st respondent to bear the cost of this application. 15. The court duly allowed the application vide its ruling delivered on 30th April 2026. 16. Subsequently, the 1st respondent moved the court vide his application dated 13th June 2026 in which he sought the following orders: 17. That this Honourable court be pleased to grant the appellant an extension of time to file and serve a Notice of Appeal against the ruling and orders of this court dated 30th April 2026. 18. That the Notice of Appeal lodged concurrently herewith be deemed as properly filed and served with time. 19. That this Honourable court be pleased to issue interim conservatory order staying the execution of orders dated 30th April 2026, and specifically restraining the Deputy Registrar and the KCB Bank Account Manager from releasing the Kshs.300,000/= held by the court to the 1st respondent pending the hearing and determination of the intended appeal. 20. That costs of this application be in the cause. 21. It is this application that is the subject of this ruling. **The Applicant’s Case:** 1. The applicant’s case in a nutshell is that he had deposited Kshs.300,000/= as security for costs. That on 30th April 2026, this court allowed the appellant/1st respondent to be paid the said amount as part of the costs due to him. That immediately he informed his advocates to lodge an appeal against the said ruling. That his advocates mistakenly advised him that he had 30 working days to lodge the appeal but he later learnt that this was not so. That the mistake of his advocate should not visit upon him. 2. The appellant/1st respondent opposed the application. He points out that the applicant had previously filed several applications for stay of execution which were all dismissed. That once the appeal was determined, the applicant has employed every tactic to prevent him from enjoying the fruits of his judgment. 3. The appellant/respondent further averred that after the appeal was determined, his costs were taxed and warrants of attachment were issued for a sum of Kshs.353,000/=. That the applicant has never challenged the decree of the court herein of the taxed costs by way of appeal. That the said sum of Kshs.300,000/= which was deposited as security ought to be released to him. That this court is now functus officio. 4. Parties filed their respective submissions which I have perused and where necessary I shall refer to them. 5. It is noted from the court record that after judgment was delivered, the applicant moved this court with his application dated 9th June 2022 which sought among other orders stay of execution of the said judgment. 6. On 10/6/2022 a stay of execution was granted condition that the applicant would deposit a security of Kshs.300,000/=. The applicant deposited the same as ordered. 7. Eventually, the application was dismissed with costs on 22/9/2022. 8. The applicant states that he was not aware of the said ruling. However, the court record indicates that his advocate Mr. Kuget was present. 9. I am thus of the view that this claim by the 1st respondent/applicant, which is casting aspersions on the court is baseless. 10. When the application dated 28/7/2025, was filed. Mr. Thangicia and Mr. Kiget appeared before court on 6th November 2025. Mr. Kiget who represented the 1st respondent sought time to file a response to that application. 11. On 25/11/2025, the same parties appeared before me and they took a date for ruling. The ruling was delivered on 30/4/2026. 12. I have considered the application. I also note that although the ruling was slated for 4/12/2025, I delivered it on 30/4/2026. The applicant acknowledges that he was aware of the ruling when it was delivered. 13. The applicant filed a notice of intention to act in person on 15/6/2026. He states that he intends to appeal against the ruling delivered on 30/4/2026. 14. I have carefully considered the reasons adduced. In my view, the applicant is entitled to appeal to the higher court, if he is not satisfied with the decision of the court. It is not for this court to determine whether his appeal is merited or not. 15. That said it is noted that the only stay sought was the release of the money to the appellant. There is no stay of execution of the decree of this court. Therefore, even if stay is granted as sought, the appellant still has the liberty to execute the decree herein. 16. I am thus inclined to grant the applicant the orders sought in his application as follows: 17. The applicant is granted leave to file the notice of appeal out of time. 18. The notice of appeal to be filed and served within the next 7 days, failing which the leave shall lapse. 19. There shall be a stay of the execution of the orders issued on 30/4/2026 pending the filing of the Notice of Appeal. 20. For the avoidance of further doubt, the appellant/respondent is at liberty to execute the decree against the 1st respondent/applicant in any other manner. 21. The sum deposited by the applicant shall remain in court pending further orders. 22. The applicant shall bear the costs of the application. **Dated, signed, and delivered at Meru this 30th day of July 2026.** **H.M. NYAGA** **JUDGE**