' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMABAY
HIGH COURT CIVIL MISC. APPLICATION NO. E019 OF 2025
DAVID OLOO OWOKO.……….....…………………….........................APPLICANT
VERSUS
BOYRD OTIENO ……………………………………………………. 1 ST RESPONDENT
HAKI AFRIKA LTD………..............................……………………. 2 ND RESPONDENT
TONY OCHIENG …………………………………………………... 3 RD RESPONDENT
RULING
On the 23/4/2025, the court did, by consent of the parties, grant to the applicant all the prayers in the Notice of Motion dated 26/3/2025 on terms that: -
“The entire decretal amount in Ndhiwa HCCC NO.E017 of 2023, be deposited in an interest earning account in the joint names of counsel on record for the parties within 30days from today.
Leave be and is hereby granted to the applicant to file the intended appeal out of time. The said appeal be filed within 30days from the date hereof.
There be stay of execution of the subject decree pending the hearing and determination of the intended appeal.
Mention on 27/5/2025 for further directions”.
It appears from the papers filed that not all conditions were complied with by the appellant specially the condition on deposit of the decretal sum into an escrow account.
That failure has provoked the instant application by which the applicant prays, in the main, that time within which to effect the deposit be enlarged and if so enlarged the orders of stay pending the hearing and determination of the appeal be made.
The reasons advanced for the default to comply were given to be that the cheques for the deposit were duly prepared and availed by the applicant’s insurer on the 21/5/2025 but the same reached their advocate on the 23/5/2025, a Saturday, and that when the said advocate availed the account opening forms to the 1 st Respondent’s counsel on the 27/5/2025 together with the cheques, the same were returned on the 4/6/2025 thus signaling decline to deposit.
The reason given by the 1 st Respondent’s counsel for the decline was that when availed, the time limited by court had lapsed. The said advocate for the 1 st respondent then proceeded and applied for execution of the decree thus prompting the instant application.
The applicant while acknowledging default assert that the default was by a mere 4 days, even when ambivalently asserting that it was not to blame. He thus pleaded with the court to grant to it the orders sought so as to preserve the substratum of the filed and pending appeal.
It was additionally stressed that if the orders sought are not granted, execution will issue and the very substratum of the appeal will have been dissipated.
With the leave of the court, the applicant filed a supplementary affidavit whose gist was that the memorandum of appeal was duly filed and served even though payment receipt allocated file serial No. HCCA No. E024/2025 instead of HCCA No. E025 of 2025.
The application equally got support from the 2 nd Respondent who said the substratum of the appeal would be lost unless the decretal sum is made available in an escrow account.
However, the application was vehemently opposed by the 1 st Respondent by the Replying Affidavit sworn in that regard. The gist of the opposition is that the application is incurably defective bad in law and outrightly abuses the court process. It asserts the right of a successful party to the fruits of litigation which should not be curtailed by an appeal which is an otherwise afterthought. It is additionally asserted that the prerequisite thresholds for grant of stay have not been made as dictated by the provisions of order 42 Rule 6 Civil Procedure Rules adding that no basis had been laid to justify failure to comply with the conditions for stay earlier granted to the applicant.
While appreciating the law that the court reserves the unfettered discretion to grant stay, the 1 st Respondent prays that in the event the court gets inclined to grant stay, it should order that half of the decretal sum and costs be paid to him pending the determination of the appeal.
Parties have filed the respective rival submissions which the court has had the time to peruse and derived the expected benefits expected of submissions in appeals.
Having considered all the materials presented before it, the court discerns that the only issues for determination are; whether the delay is inordinate, whether there has been plausible explanation of the same and, lastly, if there be satisfaction that the delay is not in ordinate and sufficiently explained; what conditions the court should impose.
It is common ground, at least the 1 st Respondent has not contested, the assertion that the deposit cheques were readied by the 21/5/2025 but only reached the applicants counsel on the 23/5/2025. It is equally common ground that the cheques together with account opening forms were delivered to the 1 st Respondent on the 27/5/2025.
From the uncontested facts, it is not in dispute that the cheques even when readied in time, were never availed to the 1 st respondent in time for purpose of opening the escrow account. There was thus an outright a delay which the court calculates to be a period of three days.
To this court, that delay cannot be genuinely and honestly termed inordinate. Equally the court finds that the explanation for the delay is also plausible.
When the two findings are looked at against the fact that the appeal has been filed and now pending determination, and in fact, that such determination can be fast-tracked so that the appeal is concluded within the next 90 days, the court finds that the interests of substantial justice tilts in favour of the court granting extension of time to effect deposit and the sought order of stay so as to preserve the appeal and its substratum.
In coming to this conclusion the court has noted that the applicant has explicitly questioned the financial ability of the 1 st Respondent to effect a refund in the event that stay is not granted execution ensued but later the appeal succeeds. That concern was given a wide berth by the 1 st respondent.
Axiomatically, the court finds that the first respondent has not demonstrated ability to effect a refund should the stay be declined and the decretal sum paid out, then later the appeal succeeds. Such a scenario would result in substantial loss to the applicant who would be incapacitated in getting his refund back.
The court therefore grants stay of execution of the decree of the trial court in Ndhiwa RMCC No. E017/2023 pending the hearing and determination of Homa Bay HCCA No.E025/2025, on condition that the entire decretal sum is deposited into an escrow account in the names of the counsel for the parties within 30 days from today.
In coming to that conclusion, the court has not ignored the 1 st & 3 rd Respondent’s submissions on the functus officio doctrine. That doctrine as much as it underscored finality and the need to bring litigation to an end, it does not prohibit the issuance of facilitative orders that anchor and enable the administration of substantial justice. The current application does not regurgitate the application for stay. No. It merely recognizes that indeed a stay was granted but events occurred which inhabited compliance with conditions of the grant. That, the court considers a facilitative remedy and not a steps that open wide the application afresh and in its entirety.
In that event, what terms/conditions ought the court impose! The court did engage the applicant’s counsel and posed the question whether he believes that at the end of litigation, the 1 st Respondent would be entitled to no dime, and counsel responded in the affirmative.
The court equally engaged counsel on what he proposed before the trial court on both liability and quantum, and his answer was that liability ought to have been at wholly against the 1 st and 3 rd Respondents and therefore no damages payable to the two.
Having found that the application for extension of time is merited and ought to be accompanied by an order of stay to preserve the substratum of the appeal, the court grants stay on the following terms;-
The deposit into an escrow account be effected within 30 days from the date hereof.
appellant shall file and serve both Record of Appeal and Submissions on appeal within 30 days from today.
Upon service the Respondent shall also file and serve written submissions within 7 days thereafter.
Time is of great essence and failure to comply with any of the conditions will result in lapse of the orders of stay of execution.
Matter shall be mentioned on 19/12/2025 to confirm compliance and for further directions by the court.
Because the applicant occasioned the delay and necessitated the application, the court orders that it pays costs of the application assessed at Kshs.25,000/=, to the 1 st and 3 rd respondents, within 30 days from today.
This determination should now mark the end of the litigation of this particular file which is ordered closed.
Dated, signed and delivered virtually this 12 th day of September, 2025
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IN THE HIGH COURT OF KENYA AT HOMABAY
HIGH COURT CIVIL MISC. APPLICATION NO. E019 OF 2025
DAVID OLOO OWOKO.……….....…………………….........................APPLICANT
VERSUS
BOYRD OTIENO ……………………………………………………. 1 ST RESPONDENT
HAKI AFRIKA LTD………..............................……………………. 2 ND RESPONDENT
TONY OCHIENG …………………………………………………... 3 RD RESPONDENT
RULING
On the 23/4/2025, the court did, by consent of the parties, grant to the applicant all the prayers in the Notice of Motion dated 26/3/2025 on terms that: -
“The entire decretal amount in Ndhiwa HCCC NO.E017 of 2023, be deposited in an interest earning account in the joint names of counsel on record for the parties within 30days from today.
Leave be and is hereby granted to the applicant to file the intended appeal out of time. The said appeal be filed within 30days from the date hereof.
There be stay of execution of the subject decree pending the hearing and determination of the intended appeal.
Mention on 27/5/2025 for further directions”.
It appears from the papers filed that not all conditions were complied with by the appellant specially the condition on deposit of the decretal sum into an escrow account.
That failure has provoked the instant application by which the applicant prays, in the main, that time within which to effect the deposit be enlarged and if so enlarged the orders of stay pending the hearing and determination of the appeal be made.
The reasons advanced for the default to comply were given to be that the cheques for the deposit were duly prepared and availed by the applicant’s insurer on the 21/5/2025 but the same reached their advocate on the 23/5/2025, a Saturday, and that when the said advocate availed the account opening forms to the 1 st Respondent’s counsel on the 27/5/2025 together with the cheques, the same were returned on the 4/6/2025 thus signaling decline to deposit.
The reason given by the 1 st Respondent’s counsel for the decline was that when availed, the time limited by court had lapsed. The said advocate for the 1 st respondent then proceeded and applied for execution of the decree thus prompting the instant application.
The applicant while acknowledging default assert that the default was by a mere 4 days, even when ambivalently asserting that it was not to blame. He thus pleaded with the court to grant to it the orders sought so as to preserve the substratum of the filed and pending appeal.
It was additionally stressed that if the orders sought are not granted, execution will issue and the very substratum of the appeal will have been dissipated.
With the leave of the court, the applicant filed a supplementary affidavit whose gist was that the memorandum of appeal was duly filed and served even though payment receipt allocated file serial No. HCCA No. E024/2025 instead of HCCA No. E025 of 2025.
The application equally got support from the 2 nd Respondent who said the substratum of the appeal would be lost unless the decretal sum is made available in an escrow account.
However, the application was vehemently opposed by the 1 st Respondent by the Replying Affidavit sworn in that regard. The gist of the opposition is that the application is incurably defective bad in law and outrightly abuses the court process. It asserts the right of a successful party to the fruits of litigation which should not be curtailed by an appeal which is an otherwise afterthought. It is additionally asserted that the prerequisite thresholds for grant of stay have not been made as dictated by the provisions of order 42 Rule 6 Civil Procedure Rules adding that no basis had been laid to justify failure to comply with the conditions for stay earlier granted to the applicant.
While appreciating the law that the court reserves the unfettered discretion to grant stay, the 1 st Respondent prays that in the event the court gets inclined to grant stay, it should order that half of the decretal sum and costs be paid to him pending the determination of the appeal.
Parties have filed the respective rival submissions which the court has had the time to peruse and derived the expected benefits expected of submissions in appeals.
Having considered all the materials presented before it, the court discerns that the only issues for determination are; whether the delay is inordinate, whether there has been plausible explanation of the same and, lastly, if there be satisfaction that the delay is not in ordinate and sufficiently explained; what conditions the court should impose.
It is common ground, at least the 1 st Respondent has not contested, the assertion that the deposit cheques were readied by the 21/5/2025 but only reached the applicants counsel on the 23/5/2025. It is equally common ground that the cheques together with account opening forms were delivered to the 1 st Respondent on the 27/5/2025.
From the uncontested facts, it is not in dispute that the cheques even when readied in time, were never availed to the 1 st respondent in time for purpose of opening the escrow account. There was thus an outright a delay which the court calculates to be a period of three days.
To this court, that delay cannot be genuinely and honestly termed inordinate. Equally the court finds that the explanation for the delay is also plausible.
When the two findings are looked at against the fact that the appeal has been filed and now pending determination, and in fact, that such determination can be fast-tracked so that the appeal is concluded within the next 90 days, the court finds that the interests of substantial justice tilts in favour of the court granting extension of time to effect deposit and the sought order of stay so as to preserve the appeal and its substratum.
In coming to this conclusion the court has noted that the applicant has explicitly questioned the financial ability of the 1 st Respondent to effect a refund in the event that stay is not granted execution ensued but later the appeal succeeds. That concern was given a wide berth by the 1 st respondent.
Axiomatically, the court finds that the first respondent has not demonstrated ability to effect a refund should the stay be declined and the decretal sum paid out, then later the appeal succeeds. Such a scenario would result in substantial loss to the applicant who would be incapacitated in getting his refund back.
The court therefore grants stay of execution of the decree of the trial court in Ndhiwa RMCC No. E017/2023 pending the hearing and determination of Homa Bay HCCA No.E025/2025, on condition that the entire decretal sum is deposited into an escrow account in the names of the counsel for the parties within 30 days from today.
In coming to that conclusion, the court has not ignored the 1 st & 3 rd Respondent’s submissions on the functus officio doctrine. That doctrine as much as it underscored finality and the need to bring litigation to an end, it does not prohibit the issuance of facilitative orders that anchor and enable the administration of substantial justice. The current application does not regurgitate the application for stay. No. It merely recognizes that indeed a stay was granted but events occurred which inhabited compliance with conditions of the grant. That, the court considers a facilitative remedy and not a steps that open wide the application afresh and in its entirety.
In that event, what terms/conditions ought the court impose! The court did engage the applicant’s counsel and posed the question whether he believes that at the end of litigation, the 1 st Respondent would be entitled to no dime, and counsel responded in the affirmative.
The court equally engaged counsel on what he proposed before the trial court on both liability and quantum, and his answer was that liability ought to have been at wholly against the 1 st and 3 rd Respondents and therefore no damages payable to the two.
Having found that the application for extension of time is merited and ought to be accompanied by an order of stay to preserve the substratum of the appeal, the court grants stay on the following terms;-
The deposit into an escrow account be effected within 30 days from the date hereof.
appellant shall file and serve both Record of Appeal and Submissions on appeal within 30 days from today.
Upon service the Respondent shall also file and serve written submissions within 7 days thereafter.
Time is of great essence and failure to comply with any of the conditions will result in lapse of the orders of stay of execution.
Matter shall be mentioned on 19/12/2025 to confirm compliance and for further directions by the court.
Because the applicant occasioned the delay and necessitated the application, the court orders that it pays costs of the application assessed at Kshs.25,000/=, to the 1 st and 3 rd respondents, within 30 days from today.
This determination should now mark the end of the litigation of this particular file which is ordered closed.
Dated, signed and delivered virtually this 12 th day of September, 2025
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