REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
HIGH COURT CIVIL APPEAL NO. E017 OF 2025
(Coram: Andayi W. F. Judge)
AMOS ODHIAMBO t/a
UKUNDA GENERAL HARDWARE...................................APPLICANT/APPELLANT
VERSUS
ESTHER WANJIRU KARANJA................................................................RESPONDENT
RULING
1. On 9 th February 2026, this court granted certain orders following the applicant’s application dated 19 th September 2025 which had sought an order of stay of execution of the Magistrate’s Court at Msambweni in Civil Case No. E034 of 2024 committing the applicant to civil jail for failing to pay a decretal sum. The orders granted were that:
a. Stay of execution of the ruling of the lower court dated 23 rd May 2025 and ensuing order in Msambweni Magistrate’s Court Civil Suit No. E034 OF 2022 is granted pending hearing and determination of the appeal herein on condition that the applicant/appellant deposits in court, a total sum of KShs 500,000/= within the next 30 days noting that he had already deposited KShs 100,000/= at the interlocutory stage.
b. The record of appeal is filed within 45 days from today.
c. Failure by the applicant to abide by the condition (a) hereinabove this application will be deemed to have been dismissed and the respondent will be at liberty to execute.
d. Costs of the application will abide by the appeal.
2. The applicant, Amos Odhiambo has come back to court in a notice of motion dated 19 th February 2026 seeking the following orders for this court to review and vary the condition set by the court that the applicant deposits a sum of KShs 500,000/= within thirty (30) days so as to deem the motor vehicle seized and in possession of the respondent as sufficient security for costs pending the hearing and determination of the appeal. Further that the costs of the application be provided for.
3. The application for review is premised on various grounds set out on the face of the application and expounded in the affidavit of the applicant Amos Odhiambo sworn on 19 th February 2026. In summary they are that the applicant had already surrendered his motor vehicle registration number KCD 820J Mitsubishi Fuso to Sure Auctioneers in execution and satisfaction of the decree in the suit before the lower court. The said vehicle is still held by the respondent who has not even rendered an account of the same. That the said motor vehicle is worth KShs 2,400,000/=, approximately three times the decretal sum. That it was his primary means of income which he has now been deprived of and he is in serious financial distress and therefore unable to raise the sum of KShs 400,000/=. That the applicant, who is out on a cash bail of KShs 100,000/= stands the risk of being committed to civil jail and therefore to suffer substantial prejudice when there is already a security of value exceeding the decretal sum.
4. The application is brought under sections 1A, 1B and 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya, Order 45 and Order 51 of the Civil Procedure Rules, and all other enabling provisions of the law.
5. The application is opposed by the respondent Esther Wanjiru Karanja through her replying affidavit sworn on 16 th March 2026. Although she has cited Sure Auctioneers as the 2 nd respondent and even refers to it as such in her replying affidavit, there is no second respondent to the application.
6. Her first response is that the signature appended to the applicant’s supporting affidavit is different from other signatures appearing in his previous supporting affidavit sworn on 19 th September 2025 in support of the application of even date and to his known signature appearing on various documents such as the agreement between the applicant and the respondent dated 16 th March 2021, proposed mode of payment of the plaintiff’s claim dated 1 st October 2022 and consent dated 6 th October 2022. The respondent contents that this conduct exposes the applicant and his advocate on record to unethical character. She has annexed to her affidavit the various documents mentioned.
7. The respondent deposes that the contention that motor vehicle registration number KCD 820J was the only means of income for the applicant is spurious for reasons that the respondent is aware that the applicant operates a hardware previously going by the name of Ukunda New Milimani General Hardware which has since been renamed New Milimani General Hardware and to which the respondent did supply the applicant some timber worth KShs 843,500/= on 23 rd March 2019. The respondent has annexed to the affidavit an invoice dated 29 th March 2019 for the supply of timber by Esther W. Karanjah to Ukunda New Milimani Gen. H/Ware for KShs 843,500/= and a copy of records from the Business Registration Services dated 25 th November 2022 indicating that the business by the name of New Milimani General Hardware was as at that date registered in the name of Amos Opiyo Odhiambo.
8. The respondent deposes further that the applicant has not provided any valuation report for the said vehicle to support his allegation that it is worth three times the value of the decretal sum. That to the contrary the respondent has provided a valuation report by Auto Decade Assessors dated 1 st February 2023 who valued the vehicle at KShs 850,000/= with an indication that it would realize KShs 637,500/= on a forced sale.
9. The respondent denies that she is the one holding the applicant’s motor vehicle and now has annexed to her replying affidavit a ruling delivered on 14 th June 2024 by the lower court, which was not made available to this court in the previous application, to the effect that the the auctioneer, and not the respondent, was the one ordered to release the said motor vehicle to the applicant. The respondent therefore asserts that the applicant is at liberty to institute contempt of court proceedings against the 2 nd respondent herein (I have observed above that there is no second respondent to this application).
10. The respondent deposes further that the applicant is not being sincere in alleging that he lacks the means to settle the decretal sum because he has had the means to settle the decretal sum when he disposed of his property known as Kwale/Ramisi Phase II SS/1018 but did not do so. The respondent has annexed to the replying affidavit certificates of official search for the said parcel of land before and after the said disposal.
11. The respondent deposes that the application fails to meet the requirements for grant of an order of review of an order or decree under Order 45 Rule 1 of the Civil Procedure Rules.
12. The application was disposed of on the written submissions of counsels for the applicant and the respondent.
13. Both learned counsels for the parties submit that the only issue for the court’s determination is whether applicant has established a case for the court to review the condition stay of execution in the ruling delivered on 9 th February 2026.
14. I note that although the respondent complained that the signature on the application appears different from the known signature of the applicant appended on other documents, that issue was not taken up in submissions. More importantly, the respondent has not filed a substantive application to raise the issue to which the applicant would be required to respond. The affidavit evidence presented before the court without more is insuffient to have this court make a determination on that issue.
15. According to learned counsel, the application is premised on the ground of any other sufficient reason. He cites the case of Republic v. Public Procurement Administrative Review Board & 2 others [2018] KEHC 2735 (KLR) for the holding that the ground is broad and is intended to enable the court exercise its inherent jurisdiction to prevent injustice and safeguard the rights of parties affected by its decisions. Therefore, I find the submissions made by learned counsel for the respondent on the other grounds under Order 45 of discovery of new or important matter or evidence and mistake or error apparent on the face of the record are otiose and this court is not bound to consider them.
16. Learned counsel submits reiterating the depositions by the applicant that the peculiar circumstances of this case are that this court acknowledged that the applicant had surrendered his motor vehicle to the respondent in execution and to-date the same had not been returned nor accounts rendered. That this has rendered it difficult for the applicant to comply with the court’s order to deposit the security as ordered. Further, that the vehicle’s value is far greater than the decretal sum and is therefore adequate security.
17. Learned counsel also submits that the review sought accords with the court’s overriding objective under sections 1A and 1B of the CPA to facilitate the just, expeditious and proportionate resolution of disputes.
18. Learned counsel for the respondent submits that the application fails the parameters set out under Order 45 Rule 1 of the CPR and should be dismissed. On the ground of any other sufficient reason, learned counsel has cited the cases of Ahmed Hassam Mulji v Shrinbai Jadavji [1963]EA 217 and Yusuf v. Nokrach [1971] EA 104 for the holding that with regard to the ground of any other sufficient reason, these words must be confined to a reason sufficient on grounds at least analogous to those specified immediately previously, that is, excusable failure to failure to bring to the notice of the court new and important matters, or error on the face of the record.
19. I have considered the notice of motion application, the grounds in support thereof and the supporting affidavit. The issue for determination is whether the application meets the threshold for grant of an order for review under section 80 Civil Procedure Act (Cap. 21) Laws of Kenya as expounded under Order 45 of the Civil Procedure Rules.
20. Section 80 of the Civil Procedure Act provides as follows: -
Review
Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.
21. Further order 45 Rule 1 of the Civil Procedure Rules provides with respect to review that: -
(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
22. Under these provisions of the law, a party seeking review is under obligation to demonstrate that:
a. there has been discovery of new and important matter or evidence which after due diligence, was not within the applicant's knowledge or could not be produced at that time;
b. there is some mistake or error apparent on the face of the record; or
c. that there is any other sufficient reason; and
d. that the application has been brought without unreasonable delay.
23. The present application is based on the ground that there is sufficient reason to review the condition for stay ordered by this court that the applicant should deposit in court a sum of KShs 400,000/= as security, in addition to the KShs 100,000/= already deposited as security to secure his release from custody. The reason offered by the applicant is that the court should take into account that his motor vehicle is being held by the respondent in execution of the decree in the lower court and which is the subject of the appeal before this court. The question is whether or not this reason is analogous to discovery of new and important matter or evidence or mistake or error apparent on the face of the record. I do not think so.
24. In the case of Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR) , the High Court, Mativo, J. (as he then was) considering the ground of sufficient reason stated thus :
“A court can review a judgment for any other sufficient reason. In the case of Sadar Mohamed vs Charan Signh and Another [1963]EA 557 it was held that any other sufficient reason for the purposes of review refers to grounds analogous to the other two (for example error on the face of the record and discovery of new matter. Mulla in the Code of Civil Procedure in Sir Dinshah Fardunji Mulla, The Code of Civil Procedure , 18 th Edition, Reprint 2012, at Page 1147, paragraph 10 Civil Appeal No. 90 of 2001; {2001} LLR 6937 (CAK) (writing on Order 47 Rule 1 of the Civil Procedure Code of India), (the equivalent of our Order 45 Rule 1), states that the expression 'any other sufficient reason’... means a reason sufficiently analogous to those specified in the rule . Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out..., would amount to an abuse of the liberty given to the tribunal under the Act to review its judgement.”
25. It is apparent that the appellant is dissatisfied with the condition imposed by the court for grant of the order of stay. It appears that he finds it onerous to fulfill on allegations that he does not possess the means to raise the amount. He therefore reverts to the issue of his vehicle being detained by the respondent to allege that his means of raising income that would have assisted to raise that money has been curtailed. This court had in mind that assertion when it made the condition for stay. It cannot be said now to be a sufficient reason to review the condition. For that reason, it is not analogous to discovery of a new matter or error apparent on the face of the record.
26. Furthermore, the respondent has discounted the applicant’s assertions by deposing that as a matter of fact well known to her since she has dealt with the applicant in business transactions, the appellant has a hardware shop which he operates and further that he has sold his parcel of land and therefore had the means to offset the decretal sum but failed to do so. The applicant did not challenge these assertions by the respondent. They therefore discount his assertion that the lorry was his only means of income. In any case, if it was and for instance, it had been sold and the decretal amount not satisfied, it would simply not be available to him to use it to earn income yet he would be required to settle the balance of the decretal sum. In that case, he cannot keep referring to the lorry as his means of income since it would not be available to him as such.
27. His other assertion that the lorry was worth three times more than the decretal sum is equally discounted by the respondent who produced a valuation report annexed to the replying affidavit and whose contents were not disputed by the applicant through a different report. Therefore, what the applicant is alleging is not true.
28. The appellant, through his supporting affidavit, seems to be mistaken that the sum of KShs 500,000/= was security for costs. It was not security for costs but such security for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant as is provided for under Order 42 Rule 2(b). The applicant deposed in his affidavit sworn on 8 th July 2025 supporting the application for stay of execution, that the decree was for the sum of KShs 674,660/= as at that time. On that basis this court found that a sum of KShs 500,000/= in the circumstances where the applicant had made various promises to settle the amount in vain, was reasonable.
29. For clarity, the orders of 9 th February 2026 remain as issued that the stay was conditional upon depositing the sum of KShs 500,000/= less the KShs 100,000/= already deposited as security, in court within 30 days thereof save that in the interest of justice, I am inclined to extend the time for compliance with the orders of by another 30 days from today.
30. Consequently, I find that the application herein has no merit and the same is dismissed with costs to the respondent.
31. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, MicrosoftTeams this 28 th day of July 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Owade for the applicant.
Mogaka h/b for Kimani Karanja for the respondent.
Ummu: Court Assistant.
ANDAYI W. F.
JUDGE
KWALE HC CA NO. E017/20258/Review
IN THE HIGH COURT OF KENYA AT KWALE
HIGH COURT CIVIL APPEAL NO. E017 OF 2025
(Coram: Andayi W. F. Judge)
AMOS ODHIAMBO t/a
UKUNDA GENERAL HARDWARE...................................APPLICANT/APPELLANT
VERSUS
ESTHER WANJIRU KARANJA................................................................RESPONDENT
RULING
1. On 9 th February 2026, this court granted certain orders following the applicant’s application dated 19 th September 2025 which had sought an order of stay of execution of the Magistrate’s Court at Msambweni in Civil Case No. E034 of 2024 committing the applicant to civil jail for failing to pay a decretal sum. The orders granted were that:
a. Stay of execution of the ruling of the lower court dated 23 rd May 2025 and ensuing order in Msambweni Magistrate’s Court Civil Suit No. E034 OF 2022 is granted pending hearing and determination of the appeal herein on condition that the applicant/appellant deposits in court, a total sum of KShs 500,000/= within the next 30 days noting that he had already deposited KShs 100,000/= at the interlocutory stage.
b. The record of appeal is filed within 45 days from today.
c. Failure by the applicant to abide by the condition (a) hereinabove this application will be deemed to have been dismissed and the respondent will be at liberty to execute.
d. Costs of the application will abide by the appeal.
2. The applicant, Amos Odhiambo has come back to court in a notice of motion dated 19 th February 2026 seeking the following orders for this court to review and vary the condition set by the court that the applicant deposits a sum of KShs 500,000/= within thirty (30) days so as to deem the motor vehicle seized and in possession of the respondent as sufficient security for costs pending the hearing and determination of the appeal. Further that the costs of the application be provided for.
3. The application for review is premised on various grounds set out on the face of the application and expounded in the affidavit of the applicant Amos Odhiambo sworn on 19 th February 2026. In summary they are that the applicant had already surrendered his motor vehicle registration number KCD 820J Mitsubishi Fuso to Sure Auctioneers in execution and satisfaction of the decree in the suit before the lower court. The said vehicle is still held by the respondent who has not even rendered an account of the same. That the said motor vehicle is worth KShs 2,400,000/=, approximately three times the decretal sum. That it was his primary means of income which he has now been deprived of and he is in serious financial distress and therefore unable to raise the sum of KShs 400,000/=. That the applicant, who is out on a cash bail of KShs 100,000/= stands the risk of being committed to civil jail and therefore to suffer substantial prejudice when there is already a security of value exceeding the decretal sum.
4. The application is brought under sections 1A, 1B and 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya, Order 45 and Order 51 of the Civil Procedure Rules, and all other enabling provisions of the law.
5. The application is opposed by the respondent Esther Wanjiru Karanja through her replying affidavit sworn on 16 th March 2026. Although she has cited Sure Auctioneers as the 2 nd respondent and even refers to it as such in her replying affidavit, there is no second respondent to the application.
6. Her first response is that the signature appended to the applicant’s supporting affidavit is different from other signatures appearing in his previous supporting affidavit sworn on 19 th September 2025 in support of the application of even date and to his known signature appearing on various documents such as the agreement between the applicant and the respondent dated 16 th March 2021, proposed mode of payment of the plaintiff’s claim dated 1 st October 2022 and consent dated 6 th October 2022. The respondent contents that this conduct exposes the applicant and his advocate on record to unethical character. She has annexed to her affidavit the various documents mentioned.
7. The respondent deposes that the contention that motor vehicle registration number KCD 820J was the only means of income for the applicant is spurious for reasons that the respondent is aware that the applicant operates a hardware previously going by the name of Ukunda New Milimani General Hardware which has since been renamed New Milimani General Hardware and to which the respondent did supply the applicant some timber worth KShs 843,500/= on 23 rd March 2019. The respondent has annexed to the affidavit an invoice dated 29 th March 2019 for the supply of timber by Esther W. Karanjah to Ukunda New Milimani Gen. H/Ware for KShs 843,500/= and a copy of records from the Business Registration Services dated 25 th November 2022 indicating that the business by the name of New Milimani General Hardware was as at that date registered in the name of Amos Opiyo Odhiambo.
8. The respondent deposes further that the applicant has not provided any valuation report for the said vehicle to support his allegation that it is worth three times the value of the decretal sum. That to the contrary the respondent has provided a valuation report by Auto Decade Assessors dated 1 st February 2023 who valued the vehicle at KShs 850,000/= with an indication that it would realize KShs 637,500/= on a forced sale.
9. The respondent denies that she is the one holding the applicant’s motor vehicle and now has annexed to her replying affidavit a ruling delivered on 14 th June 2024 by the lower court, which was not made available to this court in the previous application, to the effect that the the auctioneer, and not the respondent, was the one ordered to release the said motor vehicle to the applicant. The respondent therefore asserts that the applicant is at liberty to institute contempt of court proceedings against the 2 nd respondent herein (I have observed above that there is no second respondent to this application).
10. The respondent deposes further that the applicant is not being sincere in alleging that he lacks the means to settle the decretal sum because he has had the means to settle the decretal sum when he disposed of his property known as Kwale/Ramisi Phase II SS/1018 but did not do so. The respondent has annexed to the replying affidavit certificates of official search for the said parcel of land before and after the said disposal.
11. The respondent deposes that the application fails to meet the requirements for grant of an order of review of an order or decree under Order 45 Rule 1 of the Civil Procedure Rules.
12. The application was disposed of on the written submissions of counsels for the applicant and the respondent.
13. Both learned counsels for the parties submit that the only issue for the court’s determination is whether applicant has established a case for the court to review the condition stay of execution in the ruling delivered on 9 th February 2026.
14. I note that although the respondent complained that the signature on the application appears different from the known signature of the applicant appended on other documents, that issue was not taken up in submissions. More importantly, the respondent has not filed a substantive application to raise the issue to which the applicant would be required to respond. The affidavit evidence presented before the court without more is insuffient to have this court make a determination on that issue.
15. According to learned counsel, the application is premised on the ground of any other sufficient reason. He cites the case of Republic v. Public Procurement Administrative Review Board & 2 others [2018] KEHC 2735 (KLR) for the holding that the ground is broad and is intended to enable the court exercise its inherent jurisdiction to prevent injustice and safeguard the rights of parties affected by its decisions. Therefore, I find the submissions made by learned counsel for the respondent on the other grounds under Order 45 of discovery of new or important matter or evidence and mistake or error apparent on the face of the record are otiose and this court is not bound to consider them.
16. Learned counsel submits reiterating the depositions by the applicant that the peculiar circumstances of this case are that this court acknowledged that the applicant had surrendered his motor vehicle to the respondent in execution and to-date the same had not been returned nor accounts rendered. That this has rendered it difficult for the applicant to comply with the court’s order to deposit the security as ordered. Further, that the vehicle’s value is far greater than the decretal sum and is therefore adequate security.
17. Learned counsel also submits that the review sought accords with the court’s overriding objective under sections 1A and 1B of the CPA to facilitate the just, expeditious and proportionate resolution of disputes.
18. Learned counsel for the respondent submits that the application fails the parameters set out under Order 45 Rule 1 of the CPR and should be dismissed. On the ground of any other sufficient reason, learned counsel has cited the cases of Ahmed Hassam Mulji v Shrinbai Jadavji [1963]EA 217 and Yusuf v. Nokrach [1971] EA 104 for the holding that with regard to the ground of any other sufficient reason, these words must be confined to a reason sufficient on grounds at least analogous to those specified immediately previously, that is, excusable failure to failure to bring to the notice of the court new and important matters, or error on the face of the record.
19. I have considered the notice of motion application, the grounds in support thereof and the supporting affidavit. The issue for determination is whether the application meets the threshold for grant of an order for review under section 80 Civil Procedure Act (Cap. 21) Laws of Kenya as expounded under Order 45 of the Civil Procedure Rules.
20. Section 80 of the Civil Procedure Act provides as follows: -
Review
Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.
21. Further order 45 Rule 1 of the Civil Procedure Rules provides with respect to review that: -
(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
22. Under these provisions of the law, a party seeking review is under obligation to demonstrate that:
a. there has been discovery of new and important matter or evidence which after due diligence, was not within the applicant's knowledge or could not be produced at that time;
b. there is some mistake or error apparent on the face of the record; or
c. that there is any other sufficient reason; and
d. that the application has been brought without unreasonable delay.
23. The present application is based on the ground that there is sufficient reason to review the condition for stay ordered by this court that the applicant should deposit in court a sum of KShs 400,000/= as security, in addition to the KShs 100,000/= already deposited as security to secure his release from custody. The reason offered by the applicant is that the court should take into account that his motor vehicle is being held by the respondent in execution of the decree in the lower court and which is the subject of the appeal before this court. The question is whether or not this reason is analogous to discovery of new and important matter or evidence or mistake or error apparent on the face of the record. I do not think so.
24. In the case of Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR) , the High Court, Mativo, J. (as he then was) considering the ground of sufficient reason stated thus :
“A court can review a judgment for any other sufficient reason. In the case of Sadar Mohamed vs Charan Signh and Another [1963]EA 557 it was held that any other sufficient reason for the purposes of review refers to grounds analogous to the other two (for example error on the face of the record and discovery of new matter. Mulla in the Code of Civil Procedure in Sir Dinshah Fardunji Mulla, The Code of Civil Procedure , 18 th Edition, Reprint 2012, at Page 1147, paragraph 10 Civil Appeal No. 90 of 2001; {2001} LLR 6937 (CAK) (writing on Order 47 Rule 1 of the Civil Procedure Code of India), (the equivalent of our Order 45 Rule 1), states that the expression 'any other sufficient reason’... means a reason sufficiently analogous to those specified in the rule . Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out..., would amount to an abuse of the liberty given to the tribunal under the Act to review its judgement.”
25. It is apparent that the appellant is dissatisfied with the condition imposed by the court for grant of the order of stay. It appears that he finds it onerous to fulfill on allegations that he does not possess the means to raise the amount. He therefore reverts to the issue of his vehicle being detained by the respondent to allege that his means of raising income that would have assisted to raise that money has been curtailed. This court had in mind that assertion when it made the condition for stay. It cannot be said now to be a sufficient reason to review the condition. For that reason, it is not analogous to discovery of a new matter or error apparent on the face of the record.
26. Furthermore, the respondent has discounted the applicant’s assertions by deposing that as a matter of fact well known to her since she has dealt with the applicant in business transactions, the appellant has a hardware shop which he operates and further that he has sold his parcel of land and therefore had the means to offset the decretal sum but failed to do so. The applicant did not challenge these assertions by the respondent. They therefore discount his assertion that the lorry was his only means of income. In any case, if it was and for instance, it had been sold and the decretal amount not satisfied, it would simply not be available to him to use it to earn income yet he would be required to settle the balance of the decretal sum. In that case, he cannot keep referring to the lorry as his means of income since it would not be available to him as such.
27. His other assertion that the lorry was worth three times more than the decretal sum is equally discounted by the respondent who produced a valuation report annexed to the replying affidavit and whose contents were not disputed by the applicant through a different report. Therefore, what the applicant is alleging is not true.
28. The appellant, through his supporting affidavit, seems to be mistaken that the sum of KShs 500,000/= was security for costs. It was not security for costs but such security for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant as is provided for under Order 42 Rule 2(b). The applicant deposed in his affidavit sworn on 8 th July 2025 supporting the application for stay of execution, that the decree was for the sum of KShs 674,660/= as at that time. On that basis this court found that a sum of KShs 500,000/= in the circumstances where the applicant had made various promises to settle the amount in vain, was reasonable.
29. For clarity, the orders of 9 th February 2026 remain as issued that the stay was conditional upon depositing the sum of KShs 500,000/= less the KShs 100,000/= already deposited as security, in court within 30 days thereof save that in the interest of justice, I am inclined to extend the time for compliance with the orders of by another 30 days from today.
30. Consequently, I find that the application herein has no merit and the same is dismissed with costs to the respondent.
31. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, MicrosoftTeams this 28 th day of July 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Owade for the applicant.
Mogaka h/b for Kimani Karanja for the respondent.
Ummu: Court Assistant.
ANDAYI W. F.
JUDGE
KWALE HC CA NO. E017/20258/Review