The application before the court for determination is the Notice of Motion dated 13th October, 2025, brought by the Appellant pursuant to sections 1A, 3A, and 63(e) of the Civil Procedure Act, and article 159 of the Constitution of Kenya 2010.
The application seeks an order that the money deposited as security by the Appellant pending the hearing of the appeal be released to the Appellant/Applicant.
The grounds upon which the application was brought are that the appeal was withdrawn on 8th September, 2025.
That the Appellant/Applicant had deposited security of Kshs.100,000/- pending determination of the appeal.
That when the appeal was withdrawn, the court did not make an order for refund of the amount deposited as security.
When the matter came up for hearing on 7th May, 2026, Counsel for the Respondent informed the court that the Respondent was not opposing the application and prayed that the order of stay of execution granted be vacated.
Attached to the application was a copy of the court deposit receipt No. DCY – 0001762 showing that Kshs. 100,000/- was deposited by JOHN OSUWO on 23rd August, 2023, on behalf of Walter Asuwo Ndalo, the appellant/applicant in this case.
The application is unopposed. The court is, however, unable to find on record the court order that directed for the deposit of the security amount and for stay of execution and stay of execution. Equally, I find no copy of the court order withdrawing the appeal.
In the premises, I hereby order the release of the amount of Kshs.100,000/- deposited by JOHN OSUWO to the applicant upon identification on condition that the applicant produces:
(i) a copy of the order that directed the deposit in court of the security amount of Kshs 100,000.
(ii) A copy of the court order withdrawing the appeal.
Upon release of the security amount to the Applicant, the order of stay of execution, if any, granted herein shall lapse.
No order as to costs.
Orders accordingly.
Ruling dated and signed at Kisumu, and read on this 9th day of July, 2026, virtually, through Microsoft Teams online application.
E. ASATI,
JUDGE.
In the presence of
Atika - Court Assistant.
The Applicant present in person.
No appearance for the Respondent.