https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10190

Simiyu v Attorney General of Kenya & 4 others (Civil Suit 2 of 1988) [2026] KEHC 10190 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10190 (KLR) Republic of Kenya In the High Court at Eldoret Civil Suit 2 of 1988 RN Nyakundi, J July 13, 2026 Between George Francis Simiyu Plaintiff and The Hon Attorney General Of Kenya 1st Defendant The Director Of Public Prosecutions 2nd Defendant The Inspector General Of National Police Service 3rd Defendant Christopher Wanjala 4th Defendant The Protestant Churches Medical Association Christian Health Association Of Kenya 5th Defendant Ruling 1.Before this Court is an Application under Certificate of Urgency dated 15th January 2026 brought under Sections 1A, 1B & 3A of the Civil Procedure Act and Articles 50(1) & 159(1) (2b) of the Constitution of the Republic of Kenya 2010 and all enabling provisions of the Law. The Applicant seeks the following:a.Spentb.That the stay orders issued on 28th May 2025 be and is hereby vacated forthwith.c.That in execution, the Kshs. 2,000,000/- plus the interest thereon deposited by the 5th Defendant/Judgment Debtor/Respondent in a joint Account No. 02xxxxxxxx001 domiciled at SBM Bank, ABC Branch, Nairobi be transferred in favor of Plaintiff/Judgment Creditor/Applicant's Account being: Account Name: FK Omenya & Co Account No. 0010328957001 Bank: Diamond Trust Bank Branch: Nation Centred.Costs of this application to be borne by the 5th Respondent. 2.The Application is made on the following grounds:a.That this is a 1988 matter having been in Court for 37 years.b.That a judgment was delivered on 23rd December 2024 and the 5th Defendant/Judgment Debtor/Respondent being dissatisfied with the same filed a Notice of Appeal dated 20th January 2025c.That on 28th May 2025, the said 5th Defendant/Judgment Debtor/Respondent was able to obtain a stay of execution pending filing of intended appeal on condition that the Applicant deposit Kshs. 2,000,000/- in a joint interest earning account in the name of the advocates on record for both parties.d.That since there was no timeline given as to when the said deposit ought to be made, the said 5th Defendant/Judgment Debtor/Respondent exploited the loophole to set up the account and deposited said sum on 4th November 2025 in Account No. 02xxxxxxxx001 domiciled at SBM Bank, ABC, Nairobi Branch which is 5 months after obtaining stay orders.e.That after several unanswered phone calls, the Applicant's Advocate sent a reminder email on 3rd November 2025 to Lutta & Co. Advocates and conveniently the account was opened on 4th November 2025f.That 30 days' appeal period has lapsed since 4th November 2025 when the security was deposited and the 5th Defendant/Judgment Debtor/Respondent has NOT filed a substantive appeal.g.That the 5th Defendant/Judgment Debtor/Respondent continues to enjoy stay orders to date to the detriment of the Judgment Creditor/Applicant in abuse of the said stay orders.h.That the delay has denied the Plaintiff/Judgment Creditor/Applicant from enjoying fruits of his judgment holding him hostage as the filing, hearing and determination of the intended appeal is in abeyance.i.That the delay in filing the intended appeal in not only unreasonable but also malicious, unjustified, made in bad faith and only demonstrates that the 5th Defendant/Judgment Debtor/Respondent did not have an arguable appeal in the first place.j.That unless the orders herein are so granted as a matter of urgency, the Plaintiff/Judgment Creditor/Applicant will be subjected to great and irreparable prejudice being a senior citizen of the Republic.k.That the 5th Defendant/Judgment Debtor/Respondent will not suffer anyl.That the application sought herein should be granted for the interest of justice and fairness to be served. 3.In response to the application the 5th Defendant filed a replying affidavit sworn by one Dr. Chrisostim Barasa who stated as follows;i.That I am the 5th Defendant’s General Secretary/CEO conversant with the facts of this case and competent to depose this affidavit.ii.That I have read and understood the Plaintiff’s application dated 15th January 2026 in its entirety and I depone this affidavit in opposition thereof.iii.That I am aware that the 5th Defendant instructed our advocates to lodge an appeal against the judgment delivered herein and seek stay of execution.iv.That I am informed by Mr. Lutta, Senior Counsel, and verily believe the same to be true that they duly filed a Notice of Appeal applied for certified copies of the proceedings and paid for the same. Now shown to me and marked ANNEXURE “A” are copies of the same.v.That Mr. Lutta again informs me and I verily believe the same to be true that the certified copies of the proceedings have not been availed to his firm by the Court.vi.That I am aware that an application for stay of execution was filed and allowed ordering that we deposit the sum of Kshs. 2,000,000/= in a joint interest-bearing account in the names of Counsel for the Plaintiffs and our Counsel.vii.That I am aware that on 3rd June 2025, our advocates wrote to the Plaintiff’s advocates informing them that a bank account for deposit be opened with SBM Bank Ltd and requested that the Plaintiff’s advocates provides the documents Page 1 required for opening the account together with account opening forms. Attached hereto and marked ANNEXURE “B” is a copy of the said letter.viii.That more than one and half a month later, the Plaintiff’s advocates had not provided any documents prompting our advocates to write to him on 17th July 2025 asking for the same documents together with the completed account opening forms. Produced herewith and marked ANNEXURE “C” is a copy of the said letter.ix.That there was no response whatsoever the said letter for the Plaintiff’s advocates.x.That I am informed by Mr. Lutta and verily believe the same to be true that he then contacted the Plaintiff’s advocate who visited him at his offices on 31st July 2025.xi.That Mr. Lutta informs me that the Plaintiff’s advocate then on the said 31st July 2025, sent him by WhatsApp the documents required and signed the bank account opening forms while at our advocates offices. I verily believe the same to be truexii.That attached hereto and marked ANNEXURE “D” are copies of the Plaintiff’s Advocate identification documents together with the firm registration certificate and photograph.xiii.That I am advised by Mr. Lutta and verily believe the same to be true that he duly completed his part of the bank opening forms and forwarded the same to the bank for their due diligence and account opening.xiv.That I am again informed by Mr. Lutta and verily believe the same to be true that he kept in touch with the bank Manager, one Nephat Mbogoh who informed him that the bank agents were having delays in obtaining an official search in respect of the Plaintiff’s advocates' registration at the Business Registration Bureau– “F.K. OMENYA & CO.”xv.That I am further advised by Mr. Lutta that the bank Manager Mr. Mbogo aforesaid, then requested for a copy of the order of the Court authorizing opening of the bank account which he supplied on 1st October 2025.xvi.That I am again advised by Mr. Lutta that the bank officials again noted that the back side of the Plaintiff’s advocates Identity Card had not been provided and requested for the same.xvii.That I am informed by Mr. Lutta and verily believe the same to be true that he sent a WhatsApp message to Plaintiff’s advocates on 2nd October 2025 requesting for the back side of his Identity Card which the Plaintiff’s advocates sent. Now shown to me and marked ANNEXURE “E” is a copy of the message sent and the copy of the back side of the Identity Card sent on the same day.xviii.That again shown to me and marked ANNEXURE “F” is communication from SBM Bank Ltd dated 7th October 2025 informing Mr. Lutta that a bank account had been opened.xix.That I know that on or about the 10th October 2027 Mr. Lutta supplied us with the details of the bank account with instructions that funds be deposited then.xx.That upon receipt of the details of the bank account, I speedily moved to obtain signatures from the 5th Defendant’s Board of Trustees to draw Kshs. 2,000,000/= from the deposit since the mandate of management is capped Kshs. 600,000/=.xxi.That the 5th Defendant’s Trustees in the Finance Committee are not residents in Nairobi and had to be contacted in their respective Counties to sign two (2) cheques.xxii.That I am aware that the cheques were received by us on 3rd November 2025 and duly banked on 4th November 2025. ANNEXURE “G’.xxiii.That I am aware that as soon as the account was opened, our advocates notified the Plaintiff’s advocates. Shown to me and marked ANNEXURE “H” is a copy of the correspondence.xxiv.That from the above chronology of events, it is evident that there was no delay by the 5th Defendant as portrayed by the Plaintiff or delay if any is not deliberate.xxv.That it is manifestly clear that the averments in the Plaintiff’s supporting affidavit are bereft of any colour of truth and contrary to the dealings between the respective advocates.xxvi.That the 5th Defendant has complied with all the requirements of the law with regard to the steps to be taken to pursue its right of appeal to the Court of Appeal.xxvii.That I am aware that certified copies of the proceedings have not been supplied and an appeal cannot be lodged in the circumstances.xxviii.That the Plaintiff’s application is meant to steal a match on the 5th Defendant to deny it of its right to appeal.xxix.That the 5th Defendant will highly be prejudiced if the Plaintiff’s application is allowed and the deposited funds are paid out to him if the intended Appeal is allowed.xxx.That the Plaintiff’s application is premature, frivolous and vexatious and should be dismissed with costs. Decision 4.The issues of contestation between the Judgment Creditor and debtor is whether the stay of execution pending appeal should be vacated based on the aspect on the delay by the Appellant that the condition precedent that the decretal sum to be deposited on a joint earning account is yet to be complied with meets the threshold of Section 80 of the Civil Procedure Act as read with Order 45 Rule 1 of the Civil Procedure Rules. 5.As a reminder to the parties and pursuant to the principles of the case of Deposit Protection Fund Board suing as the Liquidator of the Reliance Bank Limited vs Panachand Jivraj Shah and Others Civil Case No. 1529 of 2009 I considered the following conditions for grant of a stay of execution of the judgment pending appeal;i.That there is a sufficient cause for the grant of the order of stay of execution of the decree or order;ii.That the substantial loss may result to the Applicant unless the order is made;iii.That the application has been made without unreasonable delay;iv.That security as this Court orders for the due performance of such decree or order that is binding on the Applicant has been given by the Applicant. 6.What the Applicant is attempting to do is to ask this Court is to stifle the appeal process based on delay for the opening of the joint interest earning account of both Counsels without sufficient cause as to who bears the greatest responsibility for compliance with Court orders like the one issued by this Court. If there was ambiguity on timelines on the payment of such a large decretal sum any of the parties through their legal Counsel should have moved the Court for appropriate clarity and certainty of the time frame upon which each one of them to meet the compliance test. This is about the interest of justice based in the constitutional imperatives of Articles 27, 47, 48 and 50 of the Constitution. In a Court of law and under the doctrine of equality of arms no party or litigant is allowed to steal a legal march or take advantage of the other to occasion prejudice or injustice in both procedural and substantive law. 7.The Court of Appeal in the case of National Bank of Kenya Ltd vs Jivraj Raishi & Brothers Ltd and Others remarked as follows;“It is the duty of the Court to safeguard the interests of both parties- the plaintiffs are entitled to the enjoyment of the fruits of their success, while on the other hand the Applicant is entitled also to have its interests secured so that in the event of its intended appeal succeeding the recovery of the sum would not be in vain. All these conflicting interests must be weighed and considered against each other.” 8.It is not enough to raise issues which manifestly show that the two learned Counsels were under duty to ensure that the conditions of stay in respect of the proceedings of this Court were complied with so as not to render the appeal nugatory or moot. In dealing with the application for stay of execution made under Order 42 Rule 6 of the Civil Procedure Rules it must be remembered that the main appeal is yet to be heard and determined by the Court of Appeal. As if that is not enough, learned Counsel for the Appellant has shared with the Court documentary evidence that the decretal sum to be deposited in the joint earning account of both Counsels professionally retained by each party to this litigation is available save that logistically learned Counsel for the Respondent in one way or another or for one reason or another that joint took some time for it to be actualized. However, the good news is that on 23/1/2026 a joint earning interest account of both law firms on record in this litigation was opened rendering the concerns raised by learned Counsel Mr. Omenya for the Respondent before the Court of Appeal moot. 9.For those reasons, within the scope of Section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules as construed with Section 1A, 1B, 3 & 3A of the Civil Procedure Act the Application is dismissed for want of merit with costs to abide the outcome of the appeal. DATED, DELIVERED AND PUBLISHED VIA CTS & EMAIL THIS 13TH DAY OF JULY 2026.………………………….……….R. NYAKUNDIJUDGE