Kinyua Kamundi & DT Muyaa (Practising as Kinyua Muyaa & Company Advocates) v Southcoast Holding Ltd (Miscellaneous Civil Application E004 of 2024) [2026] KEELC 2779 (KLR)

4. Thereafter, the parties filed Supplementary Afidavits and submissions, with the Respondent/ Applicant pressing for costs of the application, while the Applicant/Respondent urged dismissal. Thus, that is the pit and substance of this Ruling hereof. II. The Notice of Motion application dated 15th August, 2025 by the Respondent/Applicant’s case 5. 6. The Application was brought under the provision of Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Cap. 21 Order 45 Rule 1 of the Civil Procedure Rules, 2010 and Article 159 of the Constitution of Kenya, 2010. The Respondent/Applicant sought for the following orders: a. Spent b. Spent. c. Spent. d. That the costs of this application be provided for. The application was premised on the grounds, facts, and testimony on the face of the application and further supported by the 19th paragraphed annexed afidavit of Sultan Khimji, Director of the Respondent/Applicant sworn on the same day as the Applicant, wherein it was averred that: a. The Afiant’s advocates, in complying with the Orders of the Court dated 3rd July, 2025, had discussed with the Applicant/Respondent and agreed that a joint account be created at Stanbic Bank. b. The Afiant’s advocates, in further pursuing compliance with the Court Orders, had communicated with the Applicant/Respondent on 11th August, 2025, and it was agreed by both firms to open a joint account with the suggested Bank, Stanbic Bank. c. Upon the law firms engaging the aforesaid bank over the formation of the joint account, each firm had proceeded to execute all documents required to open the account and finalized the required process. However, the Applicant/Respondent, at the last minute on 14th August, 2025, had stated that they were displeased with the requirement of the aforesaid Bank being the declaration of the physical residential locations of the Partners in the Applicant/Respondent firm, which had already been provided by the Afiant’s advocates, and adamantly refused to provide the said details to Stanbic Bank. d. The Afiant was advised by his advocates on record, whose advice he believed to be true, that this was despite the fact that a joint resolution had been entered into by the two law firms to create an escrow account dated 12th August, 2025 after there had been a meeting of the minds on the issue. (Attached and marked as “SK-1” was the resolution dated 12-08-2025 by the Applicants/Respondents). e. The Respondent/Applicant, as a consequence of the Applicant/Respondent’s immediate turnaround, had sent a harsh letter to the Counsel for the Respondent/Applicant dated 14th August 2025 barraging them on their rights to privacy and their unwillingness to provide the said details, and demanding a change of bank to NCBA Bank. (Attached and marked as “SK-2” was the letter by the Applicants/Respondents). f. The Bank which the Counsels for the Applicant/Respondent had suggested via their correspondence of 14th August. 2025 to open a joint account was NCBA Bank, and they had adamantly insisted on a change to the said bank. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2779/eng@2026-04-30 2

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g. The Afiant was advised by his advocates on record, whose advice he believed to be true, that his advocates, in a bid to resolve the issue swiftly, had established the NCBA Bank requirements for opening an account but discovered there was also a requirement for the declaration of the personal residential address of partners in a law firm. Therefore, the two law firms would still not have been fruitful in opening the account. (Attached and marked as “SK-3” was the NCBA application form). h. The Afiant’s advocates had never received any calls from the Applicant/Respondent prior to the Afiant instructing his advocates on 11th August 2025, confirming that he had finally been able to acquire the sum of Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3,500,000.00/=) and that the escrow account could be opened for the transfer of the funds— funds that had been struggled to acquire within the 45-day time frame provided. i. The Afiant’s advocates had, for the above reasons, written to the Applicant/Respondent informing them that NCBA had the same requirement and beseeching them for their cooperation, as one could not understand the stance of the Applicants/Respondents suggesting a bank with the same requirement they said they were avoiding, noting that the provision of a residential address was a mandatory requirement under POCALMA Regulations and the said information had been relayed to them by Stanbic Bank. (Attached and marked as “SK-4” was an extract of the said POCALMA Regulations and attached and marked “SK-5” was a thread of email communication by Stanbic Bank and the Afiant’s advocates on record). j. The Afiant was advised by his advocates on record, whose advice he believed to be true, that the best thing at that juncture was to seek the Court’s leave to deposit money with the Court. The Afiant’s firm had also procured a bankers’ cheque in the name of both law firms as proof of seriousness in complying with the Court’s orders and to deposit the sum of Kenya Shillings Three Million Five Hundred Thousand Kshs. 3,500,000.00 in escrow. (Attached and marked as “SK-6” was the DTB Bankers Cheque in the name of Messrs. Kinyua Muyaa & Company and Anne Wamithi & Company Advocates). k. The Afiant was advised by his advocates on record, whose advice he believed to be true, that it had become absolutely necessary for the Court to review, vary and/or set aside order (c) in its ruling dated 3rd July, 2025 by dint of the fact that the opening of an escrow account between the two law firms was unachievable to the detriment of the Respondent/Applicant, and if not reviewed, varied or set aside, would result in the automatic dismissal of the Notice of Motion Application dated 14th May, 2025 and execution as per order (e) of the Court. l. The Afiant was advised by his advocates on record, whose advice he believed to be true, that the only plausible way to remedy the unresolvable impasse was for the Court to grant the orders as prayed for in the Application attached herein. m. The Afiant was additionally advised by his advocates on record, whose advice he believed to be true, that the prayers in the Application attached herein allowing deposit of money into Court and the Court staying proceedings would not disadvantage the Applicants/Respondents in any form or manner, as the sum of Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3,500,000.00/=) would be held by the Court as security. n. The Afiant was advised by his advocates on record, whose advice he believed to be true, that if the orders prayed for in the Application attached herein were not granted, the Respondent/ https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2779/eng@2026-04-30 3

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Applicant stood to sufier irreparable loss that could not be undone by damages and the orders for stay would lapse. o. The orders sought would have remedied the current impasse in a just manner. p. Similarly no injustice would have been visited upon the Applicant/Respondent if the aforesaid orders in the Application had been granted. q. Additionally it was in the interests of justice that those orders be granted. III. The responses by the Applicant 7. While opposing the application, the Applicant, F.Kinyua Kamundi and D.T. Muyaa practicing as Messrs. Kinyua Muyaa & CO. Advocates, responded to the Application through a 31 paragraphed Replying Afidavit sworn on 16th October, 2025 wherein the Afiant averred as follows that: a. The Afiant had perused and responded to the Respondent/Client’s Notice of Motion application dated 15th August, 2025 filed under Certificate of Urgency on even date. b. It had been stated in the first paragraph of the Certificate of Urgency that the Client had made genuine and timely efiort to comply with orders issued on 30th July, 2025 requiring the deposit of the sum of Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3,500,000.00/-) in a joint escrow account between parties’ advocates; in the seventh paragraph that the Client had only confirmed on 11th August, 2025 that the full amount had been raised; in the ninth paragraph that the Client had procured a Bankers Cheque for the sum of Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3,500,000.00/=) in the joint names of parties’ advocates; and in the eleventh paragraph that compliance with the Court’s express orders had been rendered impractical for no fault of the Client. The Client had then sought extension of time and variation of the orders earlier given, to enable deposit of those funds in Court. c. The Afiant had highlighted those paragraphs because they represented what the Client, through the advocate certifying the application as urgent, had presented to the Court as the reason for urgency. The Certificate of Urgency had formulated both grounds on the application as well as the averments on the afidavit in its support. d. The Client’s Director had stated on oath at paragraph 9 of his afidavit sworn in support of that application that the Client had struggled to acquire funds ordered to be deposited within the 45‑day time frame set by the Court. That had been an admission that delay was on the Client’s part. e. In light of his admission on oath that the Client had struggled to acquire funds within the 45‑day time frame set by the Court, it must then have been seen that the assertion made to the Court to the efiect that the Client had made genuine and timely efiort to comply with the orders of the Court was inaccurate. f. Kenyan banking laws had long changed, in a manner disallowing the issue of cheques for a value beyond one million Kenya shillings per cheque. A Banker’s Cheque for the sum of Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3, 500, 000.00/=) could not have genuinely issued on 11th August, 2025 as alleged by the Client in its bid to comply with the Court’s orders of 3rd July, 2025. No such cheque had been shared with the Afiant’s firm and none had been exhibited on the application filed in Court. The Client’s Director swearing that afidavit had long‑standing experience in the banking sector, having owned a bank by another https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2779/eng@2026-04-30 4

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company, and would have known that the assertion as to a Banker’s Cheque for Kshs. 3.5 million was untenable. g. Assuming any number of other cheques had issued on 11th August, 2025 with intent to deposit them into a joint account to be opened in the names of parties’ advocates, none had been shared with the Afiant’s firm. The cheques, if so issued, would have been drawn just six days shy of the lapse of time. The Client would still have been to blame for its delayed processing of funds, as 45 days from 3rd July 2025 within which to open a joint account and deposit funds in the sum of the sum of Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3,500,000.00/=) would have lapsed by 17th August 2025. h. The Client had squandered an entire month and two days between 3rd July 2025 and 11th August 2025 when it purportedly made funds available to its advocates for purposes of such deposit. i. Upon delivery of the ruling of 3rd July, 2025, the Afiant’s firm had written to the Client’s advocates on 9th July, 2025 proposing to open a joint account between parties’ advocates at NCBA Bank PLC and had attached account opening forms for the Client’s advocates to complete, sign and return to facilitate the opening of a joint account. The letter had been delivered physically with enclosures. A copy of that letter duly stamped as received at the Client’s advocates’ ofices on 11th July, 2025 at 12:31 p.m. had been produced and marked as “DM‑1”. Those advocates had indicated on the copy that they had not received their Client’s instructions as to the bank at which to open the account, that the Client had not issued further instructions to them, and had reminded the Afiant’s firm that they were still within time to obtain instructions and/or seek to discuss as counsels (if instructed) on an appropriate bank. j. The Client’s advocates had not returned those forms duly executed or at all, and had not indicated to the Afiant’s firm whether and why the Client would not cooperate towards the opening of an account at NCBA Bank PLC, until 11th August, 2025 when those advocates had placed a call indicating that the Client had just been at their ofices and had instructed them to open an account at Stanbic Bank. The delay complained of had therefore been occasioned not by the Afiant’s firm but by the Client in failing to promptly instruct its advocates as regards compliance with the Court orders of 3rd July, 2025. k. In spite of the obvious delay on the Client’s part, the Afiant’s firm had committed on that call to co - operate with the Client towards the opening of an account at Stanbic Bank, requesting that they quickly avail account opening forms along with that bank’s checklist items on priority, noting that only six days remained before lapse of the timelines set by the Court. l. Such communication, including the Afiant’s letter dated 9th July, 2025, had been suppressed by the Client when it made its application. m. Stanbic Bank had issued a bunch of documents on the evening of 11th August, 2025 for execution along with a checklist of support documents required. That checklist had indicated requirements not only for the firm’s physical, postal and telephone addresses, but also the Partners’ physical and residential addresses including LR numbers for the premises, house and door numbers. n. Such requirement had only been made known to the Afiant’s firm on 13th August, 2025 when the bank’s representative dropped by with additional documents for signature, demanding proof of the Partners’ residences including LR numbers, house and door numbers. The Afiant’s firm had deemed those demands unnecessary since the account was to be in the firm’s https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2779/eng@2026-04-30 5

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name and not its individual advocates’ names, hence the cited law did not expressly apply. The demands had been termed extremely intrusive as the account was purely intended to receive funds in one go, with no much activity pending further Court orders or consent between parties in the same file as to disbursement of those funds. o. Having fully complied as regards the firm’s physical, postal and telephone addresses, even availing utility bills and the certificate of registration containing LR number of the ofice premises occupied, the Afiant’s firm had advised the bank’s representative and the Client’s advocate to engage the bank and revert with confirmation that the firm’s details supplied were suficient for the opening of such account. p. The indication subsequently made had been that the request was rejected and the bank insisted on those additional residential details. The Afiant’s firm had thus proposed to counterparts to consider taking the Client’s instructions to open the account at an alternative bank, whether NCBA Bank PLC or any other reputable bank that did not insist on such intrusive personal data, especially since account opening forms for NCBA Bank PLC had long been supplied. The Afiant’s firm had advised so by letter dated 14th August, 2025, assuring counterparts that NCBA Bank PLC would not require such intrusive data. q. Attempts to get counterparts to go back to the Client for further instructions as to the bank at which to open the account had failed, and those advocates had felt constrained to make an application to the Deputy Registrar of the Court to state that there was an impasse and that the Client would not comply with the Court orders as given. r. The Client had adequate time within which to engage in discussions with the Afiant’s firm through its advocates over the bank at which to open and maintain the account even as it sought to make funds available for deposit. Its failure to engage timeously, waiting until the last minute to decline the NCBA proposal, had been irrational. The Afiant’s firm had pointed out in the letter dated 14th August, 2025 that if time lapsed without cooperation towards opening a joint account, it would not be open to any extension of time at the Client’s behest and would proceed to set down its Bill of Costs for re‑taxation. s. The Client had not exhibited the Afiant’s service email. The Afiant’s firm had sent its letter of 14th August, 2025 to the Client’s advocates by email at 12:48 p.m. A copy of that service email marked as “DM ‑ 2” had been produced. The Client’s response by email sent at 18:31 p.m. on the same date had been exhibited as part of annexure 5 on the Client’s Director’s afidavit. It was evident that the delay or supposed impasse had been from the Client’s end. It had not therefore been correct of the Client to suppose in the application that the opening of an account had become impracticable for no fault of the Client. t. The Afiant’s firm had seen the various bankers’ cheques by the Client for a total of the sum of Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3,500,000.00/=) for the first time on annexure 6 to the afidavit in support of the Client’s application. Those cheques had all been dated 15th August, 2025. The Client had not therefore presented facts accurately to the Court on 15th August, 2025 when it stated that a banker’s cheque for the sum of Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3,500,000.00/=) had issued on 11th August, 2025 but that the Afiant’s firm had declined to cooperate towards opening of an account. u. Unknown to the Afiant’s firm, the application dated 15th August, 2025 had been filed at the very last minute on the same date, bearing in mind that time was due to lapse on Sunday https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2779/eng@2026-04-30 6

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17th August, 2025, therefore 18th August, 2025. The Afiant’s firm had sought to facilitate compliance with the orders of 3rd July, 2025, informally engaging the Client’s advocates to see that refusal to open an account at NCBA Bank PLC was unwarranted, having verified from the bank that such condition as to residential addresses of individual advocates would not be an impediment. v. To ensure no blame lay upon the Afiant’s firm, it had submitted its set of documents to NCBA Bank PLC on 15th August, 2025 and drawn a letter addressed to the bank authorizing opening of a joint account between the Client’s advocates and itself. The firm had then emailed that letter to the Client’s advocates at 5:56 p.m. on the same date, requesting them to execute their part, scan and email it to the bank duly copied in on that correspondence along with forms duly filled and executed on their part, to facilitate account opening. A copy of that email marked as “DM‑3” had been produced. w. The Client’s Director had sworn a Supplementary Afidavit on 8th September 2025 upon opening of a joint account. That afidavit had confirmed that the account at NCBA Bank PLC was opened on 16th August, 2025 in compliance with the Court orders of 3rd July, 2025. However, it had been inaccurately stated at paragraph 4 that the Client deposited its bankers’ cheques into that account on the same date, whereas the account statement as at 29th August, 2025 exhibited on that Supplementary Afidavit showed that those cheques were banked on 18th August 2025 and their value date was 20th August, 2025, outside the timelines set by the Court. x. NCBA Bank PLC had worked around the clock at the Afiant’s request, ensuring that such account was set up on Saturday 16th August, 2025 to facilitate subsequent deposit of the Client’s cheques. Had the Afiant’s firm been unreasonable, it would have argued that as time for deposit was capped at 45 days and as the Client’s cheques would not in any event have matured by 18th August, 2025 given the intervening weekend, the Client had not been honest in making its application and in seeking orders extending time on disguised delay attributed to the Afiant’s firm. It was doubtful that such orders would have been granted or sustainable given that the Client failed to comply with the Court’s orders of 3rd July, 2025 for reasons not attributable to the Afiant’s firm, even upon utmost cooperation to help the Client achieve compliance. The Client should have truthfully disclosed to the Court that delay was on its part and graciously sought enlargement of time without shifting blame. y. The Client’s Notice of Motion application dated 15th August, 2025 was spent. For that reason the Afiant’s firm had not filed a response thereto. The Client was however opposed to the marking of that application as spent and would not withdraw it, instead insisting on a determination as to costs. z. From the foregoing averments, it was evident that the Client had withheld material information from the Court of the fact that the Afiant’s firm had promptly forwarded account opening forms to its advocates on 9th July, 2025. The Client had failed to disclose that the supposed impasse was as a result of its failure to issue prompt instructions to its advocates as to the bank, had failed to own the delayed processing of funds at its end, and had suppressed its refusal to cooperate towards opening of a joint account at any other reputable bank requiring no disclosure of intrusive personal data of the partners of the firms involved. Its failure to cooperate towards account opening must then have been seen as a plot to disguise delayed processing ofiunds, as apparent delay or non-cooperation on our part to secure orders it could not otherwise have secured from the Court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2779/eng@2026-04-30 7

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aa. The Client’s application was without merit, and the Afiant’s firm urged its dismissal with costs. ab. The Court had power to assess such costs upon dismissal of the application, and the Afiant’s firm urged that it do so to avoid further litigation over the costs of the application, as they were not captured on the Bill pending taxation depending on the outcome of the Client’s appeal. ac. As the afidavit was elaborate, the Afiant urged the Honourable Court to permit reliance upon it without the need to file additional submissions on the application. IV. Supplementary Afidavit by the Applicant/Respondent 8. The Applicant through Sultan Khimji, the Director of the Applicant/Respondent filed a 6th paragraphed supplementary afidavit sworn on 8th September, 2025 where in it was averred that: a. The Afiant’s firm had filed an application under Certificate of Urgency on 15th August, 2025 with respect to the advocates on record being unable to open a bank account, resulting in directions being issued and an extension of time by the Court to 9th October, 2025. b. On 16th August, 2025, after filing the said application and efiecting service upon the Applicant/ Respondent, the Afiant’s advocates and the Law firm of Messrs. Kinyua Muyaa & Co. Advocates, in compliance with the Orders issued by the Court on 3rd July, 2025, had opened an escrow account at NCBA Bank, Moi Avenue Branch, under Bank Account Number 1004xxxxxx. (Annexed and marked as “SK ‑ 1” was a copy of an email from NCBA sent on 16th August, 2025). c. On 16th August, 2025, the Afiant’s firm had proceeded to deposit the bankers’ cheques previously issued, amounting to the sum of Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3,500,000.00/=), in compliance with the said orders of 3rd July, 2025. (Annexed and marked as “SK ‑ 2” was a copy of the NCBA Bank account statement dated 29th August, 2025). d. In light of the said compliance, the Afiant’s firm respectfully asked the Court to issue such orders as would be just with respect to the application dated 15th August 2025. V. Submissions 9. While the Parties were present in Court, they were directed to have the Notice of Motion application dated 15th August, 2025, be disposed of by way of written submissions. 10. By the time of penning down this Ruling, this Honourable Court and despite of checking from both the Judiciary CTS Portal and the ELC Registry, it was only able to access the submissions by the Respondent/Applicant herein. 11. Pursuant thereto, the Honourable Court reserved 30th April, 2026 as the date to deliver the Ruling accordingly. A. The Written Submissions by the Respondent/Applicant 12. The Respondent/Applicant through the firm of Messrs. Anne Wamithi and Company Advocates filed their written submissions dated 30th October, 2025. M/s. Wamithi Advocate submitted that before this Honorable Court is the Respondent/Applicant's Application dated 15th August 2025, filed under Certificate of Urgency of even date, seeking the above orders. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2779/eng@2026-04-30 8

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13. The Application was premised on the grounds that the Applicant herein had made genuine and timely efiorts to comply with the Order issued by the Court on 3rd July, 2025, requiring the deposit of the sum of Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3,500,000.00/=) in a joint escrow account between the law firms of Messrs. Anne Wamithi & Co. Advocates and Messrs. Kinyua Muyaa & Co. Advocates.Following the directions of the Court in that regard, the Applicant and the Respondent entered into a joint resolution dated 12th August, 2025 by both law firms, agreeing to open an escrow account with Stanbic Bank for the deposit of the amount in compliance with the Court’s order of 3rd July, 2025.However, following the agreement by parties, the Respondent objected to Stanbic Bank’s compliance requirements for disclosure of the firms’ partners’ residential addresses, thus rendering the account creation impossible. 14. The Learned Counsel averred that the Respondent’s Replying Afidavit sworn on 16th October, 2025 itself alleged that the Respondent (advocates) demanded intrusive personal data from partners, which caused avoidable delays. That this a fabrication of the fact that it is STANBIC Bank which insisted for the residential address as evidenced in the supporting afidavits of Sultan Khimji.That Stanbic Bank as with all banks duly informed both Firms that the residential address was a mandatory requirement under the mandatory under the Proceeds of Crime and Anti-money Laundering Regulations, 2023 (see extractsannexed at pages 16-18 of the Application) after the Respondent's Advocates refused to give their residential address. 15. That Respondent’s Law Firm Partner Mr. Kinyua called the Applicant’s Advocates yelling and barraging her as to how his private residence was no one’s business and that he would not cooperate and questioned who she thought she and Stanbic Bank was meant to be to even make that a requirement for him. The Applicant's Advocate duly requested Mr. Kinyua not to speak in such a derogatory manner and that he should raise the issue with Stanbic Bank whilst pointing out it's a legal requirement and she had given her residential address to the Bank as required. 16. The Respondent unilaterally proposed NCBA Bank, which upon scrutiny by the Applicant’s Advocate, similarly required disclosure of the firms’ partners’ residential addresses.Noting that the Respondent had objected to Stanbic Bank's requirement, and that the same requirement was mandatory under NCBA Bank, the Applicant herein filed the Application dated 15th August, 2025, seeking the Court's indulgence to have the sum of the sum of Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3,500,000.00/=) deposited into Court, instead of into an escrow account which could not be opened due to the Respondent's frustrations. 17. It was similarly noteworthy that the escrow account was opened only on 16th August, 2025, after the filing and service of the Application dated 15th August, 2025 upon the Respondent. The said Application is the subject of these submissions, seeking costs of the Application.The Application is premised on the grounds that the Applicant herein had made genuine and timely efiorts to comply with the orders issued by the Court on 3rd July, 2025, requiring the deposit of the sum of Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3,500,000.00/-) in a joint escrow account between the law firms of Messrs. Anne Wamithi & Co. Advocates and Messrs. Kinyua Muyaa & Co. Advocates. 18. The Applicant took genuine and timely steps to comply with the Court’s ruling of 3rd July, 2025, which required it to deposit the sum of Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3,500,000/=) in a joint escrow account. The Applicant procured and issued a Banker's Cheque dated 15th August, 2025 and communicated this readiness to the Respondent’s advocates.The Applicants demonstrated compliance that despite the frustration it faced when it came to the opening the joint account. That when the account was finally opened as seen in the Supplementary Afidavit dated 8th September, 2025 it proceeded to have the funds deposited in compliance with the Court’s directions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2779/eng@2026-04-30 9

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19. The Learned Counsel asserted that the Applicant therefore fulfilled its obligations, despite procedural hurdles and uncooperative conduct from the Respondent. 20. The Learned Counsel relied on the following issue for determination before the Court being that whether the Applicant is entitled to costs of the Application. 21. On the analysis of the law and substantive submissions, the Learned Counsel submitted that it is trite under the provision of Section 27(1) of the Civil Procedure Act, Cap. 21 that costs of follow event. The Section provides as follows:Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and give all the necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers; Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise direct. 22. It is similarly the Jurisprudence under the Supreme Court’s decision in “Jasbir Singh Rai & 3 Others – Versus - Tarlochan Singh Rai & 4 Others”, that costs of suit will follow the cause. The Court made the following observation:“ So the basic Rule on attribution of costs is : costs follow the event. But it is well recognized that this principle is not to be used to penalize the losing party,; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the suit.” 23. The Learned Counsel submitted that the Applicant's application dated 15th August, 2025 was necessitated by the Respondent's obstruction and frustration of the agreed mechanism for compliance with the Court’s order of 3rd July, 2025. The record, in particular the Applicant’s annexure marked as “SK – 2”, shows:i. The escrow account opening was stalled due to the Respondent’s objection to disclose residential addresses. ii. The Applicant therefore had no alternative but to seek intervention of this Court to comply with the Court's Order without further delay 24. The same requirement for disclosure of Residential address prior to opening of an escrow account was also a mandatory requirement in the proposed alternate financial entity NCBA Bank. Consequently, the Applicant herein foresaw the same frustrations from the Respondent since the same reason the Respondent objected to Stanbic Bank, was a requirement in NCBA Bank. For avoidance of doubt, this is the mandatory requirement under the Proceeds of Crime and Anti-money Laundering Regulations. 25. The Learned Counsel submitted that the Court would note that the escrow account was only finally opened on 16th August, 2025 after the Application dated 15th August, 2025 was filed. This is evidenced by the Applicant’s further Afidavit sworn on 8th September, 2025 andfiled on 11th September, 2025.The delay and the need for the Application is directly attributable to the Respondent's conduct. As such, the Applicant is thus entitled to costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2779/eng@2026-04-30 10

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26. To this end, they placed reliance on the Court of Appeal in the case of:- “Punchlines Limited – Versus - Joseph Mugo Kibaria & 10 Others [2018] eKLR”, where the Court observed that:“ In Richard Kuloba, Judicial Hints on Civil Procedure, 2nd Edition, page at page 101, the author states as follows:“The law of costs as it is understood by courts in Kenya, is this, that where a plaintifi comes to enforce a legal right and there has been no misconduct on his part-no omission or neglect, and no vexatious or oppressive conduct is attributed to him, which would induce the court to deprive him of his coststhe court has no discretion and cannot take away the plaintifi's right of costs. If the defendant, however innocently, has infringed a legal right of the plaintifi, the plaintifi is entitled to enforce his legal right and in the absence of any reason such as misconduct, is entitled to the costs of the suit as a matter of course” 27. Similarly, in the case of:- “Cecilia Karuru Ngayu – Versus - Barclays Bank of Kenya & another [2016] KEHC 7064 (KLR)”, The Court observed:“ To my mind, in determining the issue of costs, the court is entitled to look at inter alia (i) the conduct of the parties, (ii) the subject of litigation, (iii) the circumstances which led to the institution of the proceedings, (iv) the events which eventually led to their termination,(v) the stage at which the proceedings were terminated,(vi) the manner in which they were terminated, (vii) the relationship between the parties and (viii) the need to promote reconciliation amongst the disputing parties pursuant to Article 159 (2) (c) of the Constitution.[11] In other wards the court may not only consider the conduct of the party in the actual litigation, but the matters which led to the litigation, the eventual termination thereof and the likely consequences of the order for costs.[12] I have considered the above points and the arguments advanced by the second defendant and in my considered opinion the conduct of the parties prior and after filing this suit is a relevant issue.” [Emphasis Added] 28. In the present Application, the Applicant’s conduct has been timely, bona fide, and in compliance with the Court's directive for deposit of security for costs. It is the Respondent's conduct that caused the corrective Application to become necessary. The Applicant is therefore entitled to costs of this Application in the ordinary course. 29. In conclusion, the Learned Counsel submitted that in light of the foregoing, the rule that costs follow the event applies; and that noting that the conduct of the Respondent necessitated the Application, no good reason is shown to warrant departure from the rule. Accordingly, the Applicant is entitled to an award of costs of the Application. 30. The Learned Counsel therefore humbly prayed that this Honourable Court be pleased to order that the costs of the Application dated 15th August, 2025 be awarded in favour of the Respondent/ Applicant. VI. Analysis and Determination 31. I have considered the Notice of Motion dated application 15th August, 2025 by the Respondent/ Applicant, the Replying Afidavit sworn by the Advocate/Respondent, and the written submissions https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2779/eng@2026-04-30 11

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filed by the Respondent/Applicant, the relevant provision of the Constitution of Kenya, 2010 and statutes. a. From the pleadings, annexures, and arguments placed before this Honourable Court, being that all the other issues had been overtaken by events the two sole issues for determination then are: b. Whether the Respondent/Applicant is entitled to costs of the Notice of Motion application dated 15th August, 2025, notwithstanding the application having been overtaken by events. c. What orders should issue in light of the parties’ conduct and the Court’s discretion under Section 27 of the Civil Procedure Act, Cap. 21. Issue No. a). Whether the Respondent/Applicant is entitled to costs of the Notice of Motion application dated 15th August, 2025, notwithstanding the application having been overtaken by events. 32. Under this subheading, the Honourable Court will determine whether the Applicant/Respondent should be awarded costs of the application dated 15th August, 2025, notwithstanding that the application was overtaken by events and rendered spent. 33. The Respondent/Applicant argues that the application was necessitated by the Applicant/ Respondent’s refusal to comply with statutory banking requirements, thereby frustrating the opening of the joint escrow account. It contends that the application was filed in good faith, and that costs should follow the event.However, the Court has already found that the delay in compliance was occasioned by the Respondent/Applicant’s own conduct. The record shows that the Applicant/ Respondent had proposed NCBA Bank as early as 9th July 2025 and had delivered account opening forms. The Respondent/Applicant failed to act on that proposal for over a month, only initiating alternative arrangements on 11th August 2025—six days before the deadline. 34. Furthermore, the bankers’ cheques exhibited were dated 15th August, 2025, contradicting earlier claims of readiness on 11th August, 2025. The Respondent/Applicant’s application was reactive, filed at the last minute, and premised on mischaracterizations of fact. It failed to disclose material correspondence, including the Applicant/Respondent’s letter of 9th July, 2025 and email of 14th August, 2025, which demonstrated proactive cooperation. 35. As already extensively submitted by the Learned Counsels herein, the provision of Section 27(1) of the Civil Procedure Act, Cap. 21 provides that costs follow the event unless the Court directs otherwise for good reason. The Legal principles were upheld in the Supreme Court case of “Jasbir Rai Singh (Supra)” and the Court of Appeal cases of “Cecilia Karuru Ngaya – Versus – Barclays Bank of Kenya & Ano. (2016) eKLR”, the Courts held that: “ ………. the basic rule on attribution of costs is that costs follow the event…...it is well recognized that the principles costs follow the event is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in presenting or defending the case” 36. Similarly, in the case of:- “Joseph Oduor Anode – Versus - Kenya Red Cross Society [2012] eKLR”, Odunga J. emphasized that discretion on costs must be exercised judicially, and reasons must be recorded where the court departs from the general rule.As set out in the case of:- “Premchand Raichand Limited – Versus - Quarry Services of East Africa Limited [1972] EA 162”, costs should fairly reimburse the successful party but not be oppressive or punitive. Additionally, Courts have consistently held that https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2779/eng@2026-04-30 12

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costs may be denied where litigation was unnecessary, frivolous, or occasioned by a party’s own conduct (see “Orix Oil (Kenya) Ltd – Versus - Paul Kabeu [2014] eKLR”). 37. In this case, application dated 15th August, 2025 sought variation of the Court’s earlier order requiring deposit of the sum of Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3,500,000.00/=) in a joint escrow account.Before the application could be determined, the parties eventually opened an escrow account at NCBA Bank on 16th August, 2025, and the funds were eventually deposited thereon.Therefore, to me the application was overtaken by events and became spent. 38. The Respondent/Applicant nonetheless pressed for costs, arguing that delays were caused by the opposing firm’s refusal to provide residential details required by Stanbic Bank.The Applicant/ Respondent countered that the delay was attributable to the Respondent/Applicant’s late instructions and misrepresentation of facts (e.g., cheques dated 15th August, 2025, not 11th August 2025).The record shows that NCBA Bank had been proposed as early as 9th July, 2025, but the Respondent/ Applicant only acted on 11th August, 2025, close to the deadline. 39. The general rule is that costs follow the event; the “event” in litigation is the outcome of the application. Here, the application was overtaken by events and did not yield substantive relief. It was efiectively unnecessary once compliance occurred.Courts have held that where an application is spent, the party who occasioned unnecessary litigation should bear costs. Ideally, therefore, to award costs to the Respondent/Applicant would contradict the principle that costs follow the event. 40. It evident that the Respondent/Applicant delayed in raising funds and issuing instructions, only acting close to the deadline. The Respondent/Applicant misrepresented the date of issuance of bankers’ cheques, undermining its credibility. The Applicant/Respondent, despite objecting to intrusive requirements, eventually cooperated in opening the NCBA account. The balance of conduct suggests that the Respondent/Applicant’s own ineficiency necessitated the application. 41. Discretion on costs must be exercised to achieve fairness. Even though the Respondent/Applicant eventually complied, the application was filed prematurely and became redundant.Awarding costs to the Respondent/Applicant would unjustly penalize the Applicant/Respondent, who was compelled to respond to an application that lacked merit and suppressed material facts.Following the legal ratio in the case of:- “Premchand Raichand (Supra)”, costs should not reward ineficiency, misrepresentation, or tactical litigation. 42. Courts discourage unnecessary applications that clog the judicial system. Granting costs in such circumstances would incentivize parties to file applications as a shield against their own delay.The principle of proportionality requires that costs refiect genuine necessity and fairness, not tactical advantage. 43. Critically speaking, therefore, Court finds that the Respondent/Applicant is not entitled to costs of the application dated 15th August, 2025. The application was overtaken by events, unnecessary, and occasioned by the Respondent/Applicant’s own delay and misrepresentation. Judicial discretion under Section 27 CPA dictates that costs follow the event, and in this case, the “event” is the dismissal of the application.. Issue No. e) What orders should issue in light of the parties’ conduct and the Court’s discretion under Section 27 of the Civil Procedure Act. 44. Under this subheading, the Honourable Court will determine the appropriate orders to issue, taking into account the conduct of both parties and the discretionary power conferred upon the Court under the provision of Section 27(1) of the Civil Procedure Act, Cap. 21. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2779/eng@2026-04-30 13

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45. Having reviewed the parties’ conduct and the principles governing costs, the Court’s discretion must be exercised judicially, guided by fairness and the general rule that costs follow the event unless for good reason otherwise ordered. The Conduct of the Respondent/ Applicant (South Coast Holding Ltd) according to the Court delayed in raising funds and issuing instructions, only acting close to the deadline. Misrepresented the date of issuance of bankers’ cheques (dated 15th August 2025, not 11th August 2025). Filed the application at the last minute, which was overtaken by subsequent compliance. 46. The Court notes on the conduct of the Applicant/ Respondent on Kinyua Muyaa & Co Advocates, the proposed NCBA Bank early (9th July 2025) and supplied account opening forms, cooperated in opening the escrow account despite objecting to intrusive requirements and was compelled to respond to an application that was unnecessary and suppressed material facts. 47. Be that as it may, costs of the application being that the same was spent are awarded to the Applicant/ Respondent, Kinyua Muyaa & Co. Advocates. VII. Conclusion and Disposition. 48. Ultimately, in view of the foregoing detailed and expansive analysis of the Notice of Motion application dated 15th August 2025, the Replying Afidavit sworn by the Applicant/Respondent, and the written submissions filed herein and the issue of costs, the Honourable Court arrives at the following decision and makes the orders below:a. That the Notice of Motion application dated 15th August 2025 filed by the Respondent/ Applicant seeking variation of the orders issued on 3rd July 2025 and permission to deposit funds directly into Court be and is hereby found to be spent. b. That Respondent/Applicant shall bear the costs of the application to be paid to the Applicant. c. That the matter shall proceed to taxation of the Advocate–Client Bill of Costs as previously directed. It is so ordered accordingly. RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 30TH DAY OF APRIL 2026. ................................. HON. MR. JUSTICE L. L. NAIKUNI, ENVIRONMENT AND LAND COURT AT KWALE Ruling delivered in the presence of: a. Mr. Daniel Disii, the Court Assistant. b. Mr. Mbare Advocate holding brief for M/s. Wamithi Advocate for the Applicant/Respondent/Applicant; and c. No appearance for Advocate/Applicant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2779/eng@2026-04-30 14

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