Webtribe Ltd t/a Jambopay v Jambopay Express Ltd (Commercial Case 159 of 2014) [2026] KEHC 8354 (KLR) (11 June 2026) (Ruling)

**REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL AND TAX DIVISION** **HCCOMM NO. 159 OF 2014** **WEBTRIBE LIMITED T/A JAMBOPAY........................................PLAINTIFF** **VERSUS** **JAMBOPAY EXPRESS LIMITED.............................................DEFENDANT** **RULING** 1. Before the Court is the Defendant’s Notice of Motion dated 18 June 2025 brought under Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act. The Defendant seeks the following orders: 1. That the sum of Kshs. 2,000,000 deposited in court on 14 August 2017 as security for stay of execution pending appeal pursuant to the Court’s order of 17 July 2017 be released to the Defendant. 2. That the said sum be released through the Defendant’s advocates on record, Muthaura Mugambi Ayugi & Njonjo Advocates. 3. That the costs of the application be provided for. 2. The application is supported by the affidavit of **Ariff Manji** sworn on 18 June 2025. The Defendant states that pursuant to the order of this Court made on 17 July 2017 granting stay of execution pending appeal, it deposited Kshs. 2,000,000 in court as security. It thereafter lodged Civil Appeal No. 285 of 2017, *Jambopay Express Limited v Webtribe Limited t/a Jambopay*, challenging the Court’s findings on liability for trademark infringement. 3. The Defendant avers that the appeal was dismissed by the Court of Appeal on 27 May 2022 with costs to the Plaintiff. It further states that the costs of the appeal were subsequently taxed and fully settled in November 2022. 4. The Defendant further depones that the Plaintiff’s outstanding claim for assessment of general damages was determined by this Court through its judgment delivered on 5 June 2025, in which the claim was dismissed, thereby bringing the entire dispute to a conclusion. The Defendant therefore contends that the purpose for which the security was deposited has been exhausted and that there is no justification for the continued retention of the funds in court. 5. The application is opposed through the Replying Affidavit of Dan Muchemi sworn on 30 April 2026. The Plaintiff contends that the Defendant was deregistered pursuant to the orders issued by the Court on 18 July 2017 and that release of the security deposit would make it difficult to recover the funds in the event that the Plaintiff succeeds in any future appellate proceedings. 6. The Plaintiff further avers that although this Court dismissed its claim for assessment of general damages, it is dissatisfied with the decision and maintains that the Court failed to properly consider the evidence and authorities placed before it. It therefore contends that the dispute has not been conclusively determined. 7. The Plaintiff consequently urges the Court to decline the Defendant’s request and retain the security deposit. **Analysis and Determination** 1. I have considered the application, the affidavits on record and the parties’ written submissions. The sole issue for determination is whether the Defendant is entitled to the release of the sum of Kshs. 2,000,000 deposited in court as security for stay of execution pending appeal. 2. The record shows that on 17 July 2017, this Court granted the Defendant a stay of execution pending appeal on condition that it file an appeal within thirty days and deposit Kshs. 2,000,000 in court as security. The relevant order stated: “THAT the applicant is to file its appeal within the next 30 days and further deposit within the said 30 days the amount of Kshs. 2,000,000/= as security with the court.” 1. It is not disputed that the Defendant complied with that order and deposited the said amount in court on 14 August 2017. The Defendant thereafter filed Civil Appeal No. 285 of 2017, *Jambopay Express Limited v Webtribe Limited t/a Jambopay*. 2. The appeal was dismissed by the Court of Appeal on 27 May 2022. The material placed before the Court further shows that the Plaintiff’s costs of the appeal were taxed at Kshs. 8,725.50 and subsequently settled by the Defendant. 3. Following the determination of the appeal, the only remaining issue before this Court related to the Plaintiff’s claim for assessment of general damages. By the judgment delivered on 5 June 2025, this Court dismissed the Plaintiff’s claim for assessment of damages, confirmed the partial judgment delivered in 2017 as the final judgment in the matter and ordered each party to bear its own costs. 4. The effect of that judgment was to conclusively determine the remaining issue in the suit and bring the proceedings before this Court to a close. 5. The Plaintiff opposes the release of the security on the basis that the Defendant has been deregistered and that recovery of the funds may be difficult should the Plaintiff ultimately succeed in any appellate proceedings. The Plaintiff also expresses dissatisfaction with the judgment delivered on 5 June 2025. 6. I am unable to agree with the Plaintiff’s position. The sum of Kshs. 2,000,000 was deposited as security pursuant to an order for stay of execution pending the determination of the Defendant’s appeal. The purpose of such security is to secure the due performance of the decree during the pendency of the appeal. 7. In the present case, the Defendant’s appeal was heard and dismissed by the Court of Appeal. The costs awarded therein have also been settled. The purpose for which the security was furnished has therefore been fully exhausted. 8. While the Plaintiff has expressed dissatisfaction with the judgment of 5 June 2025, no evidence has been placed before the Court showing the existence of a subsisting stay order, preservation order, or any other legal basis warranting the continued retention of the funds deposited in court. The mere apprehension that recovery may be difficult in the event of a future appeal does not constitute sufficient cause for withholding the release of the security. 9. In the circumstances, I am satisfied that there is no lawful or justifiable basis for the continued retention of the sum of Kshs. 2,000,000 deposited pursuant to the order of 17 July 2017. The Defendant is entitled to the refund of the said sum. 10. Accordingly, the Notice of Motion dated 18 June 2025 is merited and is hereby allowed on the following terms: 11. The sum of Kshs. 2,000,000 deposited in court on 14 August 2017 as security for stay of execution pending appeal pursuant to the order of 17 July 2017 shall be released to the Defendant through its advocates on record, Muthaura Mugambi Ayugi & Njonjo Advocates. 12. There shall be no order as to costs. 13. It is so ordered. **DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 11TH DAY OF JUNE 2026** **** **HON. MR. JUSTICE MOSES ADO *Judge of the High Court*** **In the Presence of:** *Moses C/A* *N/A………………for the Applicant* *Vincent Oloo…………for the Respondent*