RULING
1. The 1st respondent Irene Wanjiru Mwangi has approached this court vide a Notice of Motion dated 15.10.2025 wherein she craves for the release of a sum of Ksh 300,000 deposited in court by the Appellant as part payment of the security for cost conditional upon a grant an order of stay of execution pending the hearing and determination of the appeal herein.
2. This application is brought under the provisions of section 1A, 1B, and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya, Order 50 of the Civil Procedure Rules 2010, and the article 159 of the Constitution of Kenya 2010. It is supported by the 1st Respondent’s affidavit sworn on even 15.10.2025.
3. The applicant has deposed that the appellant had be granted a conditional order of stay of execution pending appeal which required her to deposit a sum of Ksh 1.3 million as security for mortuary fees and costs of the appeal but had only managed only managed to make two deposits amounting to Ksh 300,000/=, wherefore the default clause took effect and the 1st applicant has long buried her husband after personally meeting the mortuary fees of Ksh 1,300,000/=, thus rendering this appeal moot.
4. When the 1st respondent’s application came up for hearing on 9th July 2026, Ms Macharia who was holding brief for Mr Mungai for the 1st Respondent, submitted that the application was unopposed and ought to be allowed.
5. Mr Ng’ang’a counsel for the appellant submitted that the substratum of this appeal was spent wherefore the appellant was not opposed to the prayers sought by the 1st respondent.
6. I have duly considered the application, the affidavit in support thereof and the submissions of parties’ counsels and I do find that indeed the appeal herein has long been overtaken by events and given that the 1st Respondent incurred mortuary fees of Ksh 1,300,000/= at the instance of the appellant, I do find that she is entitled to collect the sum of Ksh 300,000 deposited in court.
7. On the balance I find that this application is well merited and I allowed and I make the following orders;
i) THAT the sum of Ksh 300,000 deposited in court by the appellant herein on 14.8.2014 and 24.3.2015 be released forthwith to the 1st Respondent advocates on record Messrs Mungai Kalande & Company Advocates for their onward transmission to the 1st respondent vide her account whose details are as disclosed hereunder;
Account Name: Irene Wairimu Mwangi
Bank: Cooperative bank
Account No: 01100428883001
Branch; Ongata Rongai
ii) The appeal herein is marked as spent.
iii) Each party to bear it’s own costs of this application.
iv) The 1st respondent is awarded costs of this appeal limited to the sum of Ksh 300,000 as granted in order i) hereinabove.
v) This file is hereby marked as closed.
Delivered, Signed and Dated at Milimani this 9Th day of July 2026.
Mwanaisha. S. Shariff
Judge
In the presence of:
Mr Ng’ang’a for the Appellant
Ms Macharia Holding brief for Mr Mungai for the 1st Respondent
Aziza – Court Assistant
1. The 1st respondent Irene Wanjiru Mwangi has approached this court vide a Notice of Motion dated 15.10.2025 wherein she craves for the release of a sum of Ksh 300,000 deposited in court by the Appellant as part payment of the security for cost conditional upon a grant an order of stay of execution pending the hearing and determination of the appeal herein.
2. This application is brought under the provisions of section 1A, 1B, and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya, Order 50 of the Civil Procedure Rules 2010, and the article 159 of the Constitution of Kenya 2010. It is supported by the 1st Respondent’s affidavit sworn on even 15.10.2025.
3. The applicant has deposed that the appellant had be granted a conditional order of stay of execution pending appeal which required her to deposit a sum of Ksh 1.3 million as security for mortuary fees and costs of the appeal but had only managed only managed to make two deposits amounting to Ksh 300,000/=, wherefore the default clause took effect and the 1st applicant has long buried her husband after personally meeting the mortuary fees of Ksh 1,300,000/=, thus rendering this appeal moot.
4. When the 1st respondent’s application came up for hearing on 9th July 2026, Ms Macharia who was holding brief for Mr Mungai for the 1st Respondent, submitted that the application was unopposed and ought to be allowed.
5. Mr Ng’ang’a counsel for the appellant submitted that the substratum of this appeal was spent wherefore the appellant was not opposed to the prayers sought by the 1st respondent.
6. I have duly considered the application, the affidavit in support thereof and the submissions of parties’ counsels and I do find that indeed the appeal herein has long been overtaken by events and given that the 1st Respondent incurred mortuary fees of Ksh 1,300,000/= at the instance of the appellant, I do find that she is entitled to collect the sum of Ksh 300,000 deposited in court.
7. On the balance I find that this application is well merited and I allowed and I make the following orders;
i) THAT the sum of Ksh 300,000 deposited in court by the appellant herein on 14.8.2014 and 24.3.2015 be released forthwith to the 1st Respondent advocates on record Messrs Mungai Kalande & Company Advocates for their onward transmission to the 1st respondent vide her account whose details are as disclosed hereunder;
Account Name: Irene Wairimu Mwangi
Bank: Cooperative bank
Account No: 01100428883001
Branch; Ongata Rongai
ii) The appeal herein is marked as spent.
iii) Each party to bear it’s own costs of this application.
iv) The 1st respondent is awarded costs of this appeal limited to the sum of Ksh 300,000 as granted in order i) hereinabove.
v) This file is hereby marked as closed.
Delivered, Signed and Dated at Milimani this 9Th day of July 2026.
Mwanaisha. S. Shariff
Judge
In the presence of:
Mr Ng’ang’a for the Appellant
Ms Macharia Holding brief for Mr Mungai for the 1st Respondent
Aziza – Court Assistant