REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL MISCELLANEOUS APPLICATION NO E003 OF 2025
ELLAM KIVISI MAHAGAYU……………………………………….1 ST APPLICANT
JOSEPH MUCHIRI CHEGE………………………………………..2 ND APPLICANT
VERSUS
JOHNSON NYONGESA MUSABA…………………….…………….RESPONDENT
RULING
INTRODUCTION
In their Notice of Motion dated 30 th January 2025 and filed on 10 th February 2025, the Applicants had sought orders of stay of execution of the Judgment and/or Decree delivered on 26 th September 2024 for Kshs 130,550/= plus interest in Vihiga CMCC No 6 of 2020 pending hearing and determination of the intended appeal and further and that this court be pleased to grant them leave to file an appeal against the said Judgement and Decree out of time.
The Respondent was technically not opposed the said application as when the matter came up in court on 7 th April 2025, he pointed out that he would not be filing any response thereto.
It was evident that the bone of contention herein was where to deposit the decretal sum. The Respondent had proposed that the Applicants deposit the entire decretal sum in court as a condition for the order of stay of execution as he found it complicated to open a joint interest earning account. The Applicants’ counsel sought for two (2) weeks to get the approval from its clients. The matter was then fixed for mention on 4 th June 2025 for purposes of recording a consent on the deposit of the decretal sum.
When the matter came up in court on 4 th June 2025, the parties informed this court that they had not arrived at any consent regarding the deposit of the decretal sum. The Applicants wanted the monies deposited in a joint interest earning account due to what it perceived as difficulties of withdrawing the said monies from the court in the event they were successful on Appeal. On the other hand, the Respondent was emphatic that the decretal sum should be deposited in court because of what he perceived to be difficulties in its release from a joint interest earning accounts if the intended Appeal was dismissed.
Notably, it was common practice that where the security was money, it was preferred to deposit decretal sums in interest-earning accounts, in the joint names of advocates representing the parties to the proceedings in question. Depositing monies in a joint interest-earning account benefitted both parties because by the time the appeal was determined, the money would have accrued interest earned on the deposited amount. On the other hand, decretal sums deposited in court did not earn any interest.
Having analysed the arguments by the parties herein, this court noted that both processes of depositing decretal sums had their own unique challenges starting from opening the joint accounts, depositing and release of the monies. However, neither of the two (2) processes was prejudicial to the parties herein.
Be that as it may, this court noted that as it was the Applicants who were depositing the monies, it was this court’s discretion that the decretal sum herein be deposited in a joint interest-earning account in the names of both advocates as the Applicants would benefit from the interest of being kept away from their monies in the event they succeeded in their Appeal. Conversely, in the event they lost on appeal, the Respondent would also benefit from the interest that would have accrued from the deposited amounts. Additionally, there was also the advantage of both account holders monitoring the account’s balances and transactions therein in the case of a joint interest earning account as opposed to if the decretal sum was deposited in court.
DISPOSITION
For the foregoing reasons, the upshot of this court’s decision was that the Applicants’ Notice of Motion application dated 30 th January 2025 and filed on 10 th February 2025 be and is hereby allowed in the following terms:-
THAT a stay of execution of the Judgment and/or Decree in Vihiga CMCC No 6 of 2020 be and is hereby granted pending the hearing and determination of the intended appeal on condition the Applicants shall deposit the sum of Kshs 130,550/= into an interest earning account in the joint names of their advocates and the advocates for the Respondent herein within sixty (60) days from the date of this Ruling.
THAT for the avoidance of doubt, in the event, the Applicants shall default on Paragraph 8(1) hereinabove, the conditional stay of execution shall automatically lapse
THAT the Applicants be and are hereby directed to file and serve their Memorandum of Appeal within fourteen (14)days from the date of this Ruling.
THAT the Applicants be and are hereby directed to file and serve their Record of Appeal within one hundred and twenty (120) days from the date of this Ruling.
THAT this matter will be mentioned on 15 th October 2025 to confirm compliance and/or for further orders and/or directions.
Costs of the application herein shall be in the cause.
Either party is at liberty to apply.
Orders accordingly.
DATED and DELIVERED at VIHIGA this 5 th day of June 2025
J. KAMAU
JUDGE
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL MISCELLANEOUS APPLICATION NO E003 OF 2025
ELLAM KIVISI MAHAGAYU……………………………………….1 ST APPLICANT
JOSEPH MUCHIRI CHEGE………………………………………..2 ND APPLICANT
VERSUS
JOHNSON NYONGESA MUSABA…………………….…………….RESPONDENT
RULING
INTRODUCTION
In their Notice of Motion dated 30 th January 2025 and filed on 10 th February 2025, the Applicants had sought orders of stay of execution of the Judgment and/or Decree delivered on 26 th September 2024 for Kshs 130,550/= plus interest in Vihiga CMCC No 6 of 2020 pending hearing and determination of the intended appeal and further and that this court be pleased to grant them leave to file an appeal against the said Judgement and Decree out of time.
The Respondent was technically not opposed the said application as when the matter came up in court on 7 th April 2025, he pointed out that he would not be filing any response thereto.
It was evident that the bone of contention herein was where to deposit the decretal sum. The Respondent had proposed that the Applicants deposit the entire decretal sum in court as a condition for the order of stay of execution as he found it complicated to open a joint interest earning account. The Applicants’ counsel sought for two (2) weeks to get the approval from its clients. The matter was then fixed for mention on 4 th June 2025 for purposes of recording a consent on the deposit of the decretal sum.
When the matter came up in court on 4 th June 2025, the parties informed this court that they had not arrived at any consent regarding the deposit of the decretal sum. The Applicants wanted the monies deposited in a joint interest earning account due to what it perceived as difficulties of withdrawing the said monies from the court in the event they were successful on Appeal. On the other hand, the Respondent was emphatic that the decretal sum should be deposited in court because of what he perceived to be difficulties in its release from a joint interest earning accounts if the intended Appeal was dismissed.
Notably, it was common practice that where the security was money, it was preferred to deposit decretal sums in interest-earning accounts, in the joint names of advocates representing the parties to the proceedings in question. Depositing monies in a joint interest-earning account benefitted both parties because by the time the appeal was determined, the money would have accrued interest earned on the deposited amount. On the other hand, decretal sums deposited in court did not earn any interest.
Having analysed the arguments by the parties herein, this court noted that both processes of depositing decretal sums had their own unique challenges starting from opening the joint accounts, depositing and release of the monies. However, neither of the two (2) processes was prejudicial to the parties herein.
Be that as it may, this court noted that as it was the Applicants who were depositing the monies, it was this court’s discretion that the decretal sum herein be deposited in a joint interest-earning account in the names of both advocates as the Applicants would benefit from the interest of being kept away from their monies in the event they succeeded in their Appeal. Conversely, in the event they lost on appeal, the Respondent would also benefit from the interest that would have accrued from the deposited amounts. Additionally, there was also the advantage of both account holders monitoring the account’s balances and transactions therein in the case of a joint interest earning account as opposed to if the decretal sum was deposited in court.
DISPOSITION
For the foregoing reasons, the upshot of this court’s decision was that the Applicants’ Notice of Motion application dated 30 th January 2025 and filed on 10 th February 2025 be and is hereby allowed in the following terms:-
THAT a stay of execution of the Judgment and/or Decree in Vihiga CMCC No 6 of 2020 be and is hereby granted pending the hearing and determination of the intended appeal on condition the Applicants shall deposit the sum of Kshs 130,550/= into an interest earning account in the joint names of their advocates and the advocates for the Respondent herein within sixty (60) days from the date of this Ruling.
THAT for the avoidance of doubt, in the event, the Applicants shall default on Paragraph 8(1) hereinabove, the conditional stay of execution shall automatically lapse
THAT the Applicants be and are hereby directed to file and serve their Memorandum of Appeal within fourteen (14)days from the date of this Ruling.
THAT the Applicants be and are hereby directed to file and serve their Record of Appeal within one hundred and twenty (120) days from the date of this Ruling.
THAT this matter will be mentioned on 15 th October 2025 to confirm compliance and/or for further orders and/or directions.
Costs of the application herein shall be in the cause.
Either party is at liberty to apply.
Orders accordingly.
DATED and DELIVERED at VIHIGA this 5 th day of June 2025
J. KAMAU
JUDGE