1. The appellants, through their Notice of Motion dated 25th September 2025, invoked sections 1A, 1B and 3A of the Civil Procedure Act together with Order 51, Rule 1 of the Civil Procedure Rules seeking the following reliefs:
1. … Spent;
2. THAT this Honourable Court be pleased to issue appropriate directions for the immediate release of the security for costs deposited by the appellants pursuant to the stay pending appeal, the said funds being critical for the sustenance of their day-to-day business operations;
3. THAT this Honourable Court be pleased to declare that, following the judgment delivered on 22nd July 2025, the security deposited by the appellants has been overtaken by events and is liable to be released forthwith;
4. THAT this Honourable Court be pleased to direct the Deputy Registrar to facilitate and/or oversee the prompt release of the said security to the appellants;
5. THAT costs of this application be provided for.
2. The application is supported by the grounds set out in the body of the Motion and the affidavit sworn by Philip Ndegwa Bundi, counsel for the appellants. The brief facts are that in Kathimani CMCC No. 120 of 2022 Bernard Musyoka Kitanga (suing as personal representative of the estate of James Mwancia Wambua, deceased) v. Willow Motors Limited & 3 others the trial court awarded the 1st respondent Kshs. 1,298,724.00. Aggrieved, the appellants lodged the present appeal.
3. Pending the hearing of the appeal, the appellants successfully sought stay of execution on condition that they deposit the entire decretal sum in court as security. The appeal was determined by this court on 22nd July 2025, with the appellants being partially successful. They now seek release of the deposited funds, arguing that the security constitutes a substantial sum necessary for the continued operations of the 1st appellant. They contend that justice demands the release of the funds since the purpose for which they were deposited has been spent.
4. The respondents opposed the application through a replying affidavit sworn by Doreen Namagemba, counsel from the firm of Doreen Munyua Waiyaki & Co. Advocates. They argued that they have already lodged a notice of appeal dated 1st August 2025 against this court’s judgment and have requested typed proceedings by letter dated 3rd August 2025. According to them, releasing the funds at this stage would render their intended appeal nugatory, as the funds serve as security for costs. They therefore urged the court to find the application premature
5. The court has considered the Motion, the supporting affidavit, and the replying affidavit. It is not disputed that the appellants had earlier sought stay of execution pending appeal through an application dated 14th December 2023. In its ruling delivered on 19th March 2024, this court ordered:
“12. Taking all relevant factors into account and in order not to render the intended appeal illusory while at the same time securing the interests of the successful plaintiff, I grant a stay of execution of the decree on condition that:
(a) The appellant/applicants do deposit the entire decretal sum in court within the next 30 days from the date of this ruling and in default this application shall be deemed to have been dismissed with costs and the respondents will be at liberty to execute…”
6. From the above pronouncement, it is clear that the deposit was required solely as a condition for stay pending determination of the appeal. The security was tied to the pendency of HCCA No. E320 of 2023 and was not intended to subsist indefinitely or to secure any subsequent dissatisfaction with the decisions of either the trial court or this court. While the respondents have expressed dissatisfaction and lodged a notice of appeal, that does not, in itself, justify continued holding of the deposit.
7. In my view, the purpose of the security has been fully met. The appeal was concluded on 22nd July 2025, and no justification exists for the funds to remain in court. Accordingly, the application succeeds. I order that the security for costs deposited by the appellants on 9th April 2024 be released to them forthwith. The Deputy Registrar is directed to facilitate the process of release. The applicants shall have the costs of this application.
It is so ordered.
Dated, signed and delivered at Machakos this 22nd day of January 2026.
1. … Spent;
2. THAT this Honourable Court be pleased to issue appropriate directions for the immediate release of the security for costs deposited by the appellants pursuant to the stay pending appeal, the said funds being critical for the sustenance of their day-to-day business operations;
3. THAT this Honourable Court be pleased to declare that, following the judgment delivered on 22nd July 2025, the security deposited by the appellants has been overtaken by events and is liable to be released forthwith;
4. THAT this Honourable Court be pleased to direct the Deputy Registrar to facilitate and/or oversee the prompt release of the said security to the appellants;
5. THAT costs of this application be provided for.
2. The application is supported by the grounds set out in the body of the Motion and the affidavit sworn by Philip Ndegwa Bundi, counsel for the appellants. The brief facts are that in Kathimani CMCC No. 120 of 2022 Bernard Musyoka Kitanga (suing as personal representative of the estate of James Mwancia Wambua, deceased) v. Willow Motors Limited & 3 others the trial court awarded the 1st respondent Kshs. 1,298,724.00. Aggrieved, the appellants lodged the present appeal.
3. Pending the hearing of the appeal, the appellants successfully sought stay of execution on condition that they deposit the entire decretal sum in court as security. The appeal was determined by this court on 22nd July 2025, with the appellants being partially successful. They now seek release of the deposited funds, arguing that the security constitutes a substantial sum necessary for the continued operations of the 1st appellant. They contend that justice demands the release of the funds since the purpose for which they were deposited has been spent.
4. The respondents opposed the application through a replying affidavit sworn by Doreen Namagemba, counsel from the firm of Doreen Munyua Waiyaki & Co. Advocates. They argued that they have already lodged a notice of appeal dated 1st August 2025 against this court’s judgment and have requested typed proceedings by letter dated 3rd August 2025. According to them, releasing the funds at this stage would render their intended appeal nugatory, as the funds serve as security for costs. They therefore urged the court to find the application premature
5. The court has considered the Motion, the supporting affidavit, and the replying affidavit. It is not disputed that the appellants had earlier sought stay of execution pending appeal through an application dated 14th December 2023. In its ruling delivered on 19th March 2024, this court ordered:
“12. Taking all relevant factors into account and in order not to render the intended appeal illusory while at the same time securing the interests of the successful plaintiff, I grant a stay of execution of the decree on condition that:
(a) The appellant/applicants do deposit the entire decretal sum in court within the next 30 days from the date of this ruling and in default this application shall be deemed to have been dismissed with costs and the respondents will be at liberty to execute…”
6. From the above pronouncement, it is clear that the deposit was required solely as a condition for stay pending determination of the appeal. The security was tied to the pendency of HCCA No. E320 of 2023 and was not intended to subsist indefinitely or to secure any subsequent dissatisfaction with the decisions of either the trial court or this court. While the respondents have expressed dissatisfaction and lodged a notice of appeal, that does not, in itself, justify continued holding of the deposit.
7. In my view, the purpose of the security has been fully met. The appeal was concluded on 22nd July 2025, and no justification exists for the funds to remain in court. Accordingly, the application succeeds. I order that the security for costs deposited by the appellants on 9th April 2024 be released to them forthwith. The Deputy Registrar is directed to facilitate the process of release. The applicants shall have the costs of this application.
It is so ordered.
Dated, signed and delivered at Machakos this 22nd day of January 2026.