Walter alias Walter Ngugi Kimani v Nyabuto (Civil Appeal (Application) E424 of 2021) [2026] KECA 228 (KLR)
The bottom line
#The Court of Appeal ordered a Kshs. 3 million security deposit released to the judgment creditor and refused to stay its own decree because no appeal was pending.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Kshs. 3,000,000.00 security deposit in court should be released to Nyabuto
- 2.Whether the court has jurisdiction to grant a stay of execution of its own judgment pending determination of Kimani's declaratory suit against his insurer
Key legal issues
#Release of the security deposit of Kshs. 3,000,000.00 deposited to secure stay of the High Court judgment
The deposit must be released to the decree-holder. The stay order was an interim measure protecting the appellant pending appeal; the appeal has since been determined, so retention of the deposit serving as security for the decree is unjustified. The appellant's suit against his insurer is no basis to withhold the deposit.
The November 2023 stay order was conditional and interim in nature, designed to protect Kimani from execution of the High Court judgment while his appeal was pending. That appeal was heard and determined on 28 March 2025, with the award reduced. The deposit was security for due performance of the decree; once the decree stands, the respondent is entitled to enjoy the fruits of judgment. Kimani's separate declaratory suit against his insurer, to which Nyabuto is not privy, cannot bar release.
Jurisdiction to stay execution of the Court of Appeal's own decree pending a declaratory suit against the insurer
The court lacks jurisdiction. Rule 5(2) jurisdiction is anchored on an appeal or notice of appeal; with the appeal determined and no further appeal or intended appeal, the court has no mandate to grant stay pending determination of a separate High Court suit.
Relying on Safaricom Limited v Ocean View Beach Hotel, rule 5(2) provides interim relief only where a superior court's determination is under appeal or intended to be appealed. Kimani's declaratory suit against Xplico Insurance is a separate, undetermined High Court matter, not an appeal before this court. Following Owners of Motor Vessel 'Lilian S', without jurisdiction the court cannot 'make one more step'. The application was therefore incompetent and struck out.
Legal principles established
#- An appeal or notice of appeal is a jurisdictional prerequisite for a stay-of-execution application under rule 5(2) of the Court of Appeal Rules; without an appeal or intended appeal the Court of Appeal has no jurisdiction to stay execution of a decree.
- A security deposit made to secure a stay pending appeal must be released once the appeal has been heard and determined; there is no justification for the court's continued retention of the deposit.
Court orders
#- 1.The security deposit of Kshs. 3,000,000.00 deposited in Court of Appeal Civil Application No. E119 of 2021 be released forthwith to the advocates for Fred Onyoni Nyabuto, Ms. Nyasae & Associates Advocates
- 2.The second application dated 12th June 2025 is incompetent, fails and is struck out
- 3.Costs of both applications awarded to Fred Onyoni Nyabuto
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court at Nairobi
- Jurisdiction invoked
- Court of Appeal Rules, rule 5(2) (stay of execution pending appeal); the court found no jurisdiction to grant stay absent an appeal or intended appeal
Relief refused
#Stay of execution of the Court of Appeal decree pending determination of the declaratory suit against Xplico Insurance Company Limited
The court, having rendered judgment in the appeal, has no mandate to grant such orders; rule 5(2) jurisdiction requires an appeal or intended appeal, and there is none
Costs
Costs of both applications are awarded to Fred Onyoni Nyabuto, the respondent in the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In our view, there can be no justification for the continued retention or holding by the court of the deposit of Kshs. 3,000,000.00 that was made as security for the due performance of the decree.
It is a notice of appeal or an appeal that clothes this court with the mandate to entertain an application for stay of execution under rule 5(2) of the Court of Appeal Rules.
If there is no appeal or no intention to appeal, this court would have no jurisdiction to meddle in a decision made by the superior court.
The second application dated 12th June 2025 is incompetent, it fails and is hereby struck out.
Costs of both applications are awarded to Fred Onyoni Nyabuto, the respondent in the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Walter alias Walter Ngugi Kimani v Nyabuto (Civil Appeal (Application) E424 of 2021) [2026] KECA 228 (KLR)", Case Analysis (2026). Civil Appeal No. E424 of 2021 (ruling on two applications). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/228/eng@2026-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.