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ELCDismissedNot stated in the judgment· [2026] KEELC 2790 (KLR)

Kute v Oyieyo (Miscellaneous Application E009 of 2023) [2026] KEELC 2790 (KLR)

High Court of Kenya
7 May 2026
EAE. Asati
688 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Kisumu refused to release a Kshs. 200,000 court deposit because the applicant failed to prove it was due back to him.

What this practically means

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Executive summary

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This ruling by E. Asati, Judge, at Kisumu determined a Notice of Motion dated 1st December 2025 brought by the Applicant in person seeking release of a Kshs. 200,000/- deposit held in court into his bank account. The Applicant contended he stood to suffer pecuniary loss and had already cleared his advocate's fees, and that releasing the deposit furthered the overriding objective. The Respondent, William Odongo Oyieo, opposed through a Replying Affidavit sworn on 30th January 2026, explaining that the sum had been deposited in court as security for the costs of an appeal, as a condition for allowing the appeal to be filed out of time and for stay of execution of the lower court judgment. He maintained that the appeal having been dismissed with costs, and the lower court decree still unsettled, the deposit was properly available to offset his taxed costs and the decretal sum, and sought its release to himself instead. The court found the deposit had been made pursuant to Order 42 Rule 2(b) of the Civil Procedure Rules, whose purpose is to secure due performance of the decree ultimately binding on the applicant. Holding that the Applicant failed to demonstrate the outcome of the appeal or that the deposit had become due and refundable, the court dismissed the application, ordered that the money be held as deposited to be paid to the Respondent to offset the taxed and certified costs of the appeal and the decretal sum, and awarded costs of the application to the Respondent.

Key legal issues

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01

Entitlement to release of security deposited for stay of execution pending appeal

Holding

The application was dismissed; the deposit remains in court to satisfy the Respondent's costs of the appeal (once taxed) and the decretal sum

Reasoning

The deposit was made under Order 42 Rule 2(b) as a condition for stay of execution and filing the appeal out of time. Its purpose was to protect the successful party if the appeal failed. The appeal was dismissed with costs, which are yet to be taxed, and the lower court decree remains unsettled. Releasing the money to the Applicant would defeat that purpose, and the burden lay on the Applicant to show the sum was due and refundable.

p. 2
02

Burden of proof on the applicant for release of the deposit

Holding

The Applicant bore and failed to discharge the burden of demonstrating the outcome of the appeal and that the deposit had become refundable

Reasoning

The court record showed the deposit was made as security pursuant to the order allowing the appeal to be filed out of time and stay of execution. The Applicant did not demonstrate what the outcome of the appeal was. The Respondent's evidence that the appeal was dismissed with costs and the decree remained unsettled therefore stood uncontroverted.

p. 2

Legal principles established

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  • Under Order 42 Rule 2(b), no order for stay of execution shall be made unless such security as the court orders for the due performance of the decree has been given by the applicant
  • It is for the applicant seeking release of a security deposit to demonstrate that the amount has become due and refundable to him

Court orders

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  1. 1.The application for release of the deposit of Kshs. 200,000/- is dismissed
  2. 2.Costs of the application are awarded to the Respondent
  3. 3.The money shall be held as deposited to be paid to the Respondent to offset the costs of the appeal once taxed and certified by the court, and the decretal sum
Jurisdiction invoked
Order 42 Rule 2(b) of the Civil Procedure Rules (security for stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kute v Oyieyo (Miscellaneous Application E009 of 2023) [2026] KEELC 2790 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2790/eng@2026-05-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.