[2025] KEHC 7168 (KLR)
The court found that the Applicants had only deposited the principal sum as security, and upon dismissal of the appeal, the Respondent lawfully obtained assessment of costs and interest, resulting in a further balance. Execution for the balance of Kshs. 249,073.62 was therefore proper and lawful. The Applicants'...
Source-derived case information.
- Citation
- [2025] KEHC 7168 (KLR)
- Parties
- Applicant: Rodgers Omondi Ochomo & another; Respondent: Peter Odongo Wandera
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E738 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution
- Outcome
- application dismissed with costs
- Judges
- AC Mrima
- Legal Topics
- Stay of Execution, Security for Judgment, Execution of Decree
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rodgers Omondi Ochomo & another
Applicant
Peter Odongo Wandera
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution
Legal Issues
- 1 Whether the execution of the decree for the balance of Kshs. 249,073.62 after release of the security deposit was lawful.
- 2 Whether the Applicants were entitled to a stay of execution pending settlement of the balance.
Ratio Decidendi
The court found that the Applicants had only deposited the principal sum as security, and upon dismissal of the appeal, the Respondent lawfully obtained assessment of costs and interest, resulting in a further balance. Execution for the balance of Kshs. 249,073.62 was therefore proper and lawful. The Applicants' attempt to contest the lawfulness of the execution while simultaneously expressing willingness to pay the balance amounted to approbating and reprobating, which is not permitted in law. The application for stay of execution was thus unmerited and dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed.
- Costs assessed at Kshs. 20,000 to the Respondent.
Full Case Text
Judgment text and source record
22 paragraphs
Ochomo & another v Wandera (Civil Appeal E738 of 2023) [2025] KEHC 7168 (KLR) (Civ) (30 May 2025) (Ruling)
Neutral citation: [2025] KEHC 7168 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal E738 of 2023
AC Mrima, J
May 30, 2025
Between
Rodgers Omondi Ochomo & another
Applicant
and
Peter Odongo Wandera
Respondent
Ruling
1. This ruling relates to the Appellants’/Applicants’ application by way of a Notice of Motion dated 7th March 2025. The application sought to stay the execution of the judgment and decree of the trial Court which execution followed the dismissal of the appeal on 18th December 2024.
2. The Applicants did not contest the dismissal of the appeal, but the subsequent execution claiming that they had deposited the sum of Kshs.1,565,550/= in Court as security which sum was released to the Respondent a result of which rendered the subsequent further execution unlawful.
3. The application was opposed through the Respondent’s Counsel Replying Affidavit wherein it was explained that the sum of Kshs. 1,565,550/= was the principal amount in the impugned judgment and that upon the dismissal of the appeal, the Respondent had the costs assessed and interest calculated and a subsequent decree issued where there was a balance of Kshs. 249,073. 62 and that was the basis of the execution. A decree to that effect was annexed to the Affidavit.
4. This Court has carefully considered the application and the response. There is no doubt that the amount deposited in this Court as security was the principal amount in the judgment. That amount was less costs of the suit and interest. Upon dismissal of the appeal, the Respondent had the costs and interest assessed by the trial Court and a decree issued. According to the decree, there was a balance of Kshs. 249,073. 62 after receipt of the security of Kshs. 1,565,550/=. That was the amount the Respondent executed for. Therefore, this Court does not find any fault in the manner the Respondent dealt with the execution.
5. The Applicants deposed in the supporting affidavit that they were not averse to satisfying the amount of Kshs. 249,073. 62, but needed 30 days to settle the same. However, the gist of the application pointed otherwise since the Applicants first port of call was to contest the lawfulness of the execution. The Applicants were, therefore, approbating and reprobating, an act which is legally impermissible.
6. With such a prevailing status quo, it will be remiss of this Court to stop the execution. The upshot is that the application is unmerited and is hereby dismissed with costs assessed at Kshs. 20,000/=.
Orders accordingly.DELIVERED, DATED ANDSIGNED ATNAIROBI THIS30TH DAY OFMAY, 2025. A. C. MRIMAJUDGE