Limisi v Mathews & 2 others

4. The Applicant further contends that the funds were deposited solely as security pending the hearing and determination of Nairobi Court of Appeal Civil Appeal No. E258 of 2021. However, the said appeal was struck out on 9th May 2025 following an application by the Plainti/Respondent, with the result that there is no pending appeal challenging the judgment of this Court. 5. The Applicant states that the decretal amount due from the 2nd Defendant, inclusive of taxed costs and accrued interest, stands at approximately Kshs. 6,377,890.30 and that execution proceedings have already been commenced through a Notice to Show Cause led before the Court. It is therefore argued that the security deposited pursuant to the stay order has served its purpose and ought to be released to the Plainti to be applied towards partial satisfaction of the decretal sum. 6. The application is supported by the adavit of Nicholas Odera Sumba, learned counsel for the Plainti, who reiterates the foregoing facts. He depones that the appeal for which the security was deposited no longer exists following its striking out and that the Plainti remains entitled to enforce the decree. Counsel further avers that the continued retention of the funds in the joint account is without legal basis and that it is just and equitable that the monies, together with the accrued interest, be released to the Plainti's advocates for application towards settlement of the decretal amount. 7. In support of the application, the Applicant annexes copies of the current bank statement and account opening documents relating to the joint account, the ruling of 19th November 2020 granting conditional stay of execution, the decree, the Certicate of Costs, and the ruling of the Court of Appeal delivered on 9th May 2025 striking out Civil Appeal No. E258 of 2021. Analysis and Determination 8. The Court has considered the Notice of Motion, the supporting adavit, and the annexures thereto. The application is not opposed, there being no replying adavit or grounds of opposition led by any of the Respondents. The Respondents were served with the application through their advocate and the mention notice as shown in the adavits of service by Nicholas Sumba Advocate sworn on 30th March and 31st March 2026. 9. The issue for determination is whether the Applicant has established sucient grounds for the release of the monies held in the joint interest-earning account established pursuant to the Court's order of 19th November 2020. 10. The record shows that judgment in favour of the Plainti was delivered on 6th February 2020. Following the judgment, the 2nd Defendant successfully sought an order for a stay of execution pending appeal. As a condition for the grant of the stay, this Court directed the 2nd Defendant to deposit Kshs 200,000 in a joint interest-earning account operated by the advocates for the respective parties. The purpose of the deposit was therefore purely to provide security for the due performance of the decree pending the hearing and determination of the intended appeal. 11. The Applicant has placed before the Court a copy of the ruling of the Court of Appeal showing that Nairobi Civil Appeal No. E258 of 2021 was struck out on 9th May 2025. Consequently, there is no pending appeal against the judgment of this Court. The condition upon which the security was deposited has therefore been spent. Once the appeal ceased to exist, there remained no legal or equitable basis for retaining the deposited funds in the joint account. 12. The Applicant has further demonstrated that the decretal amount remains unsatised and that execution proceedings have already been commenced against the 2nd Defendant. The monies held in https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5497/eng@2026-07-23 2

page 2 of 3

the joint account constitute security deposited by the judgment debtor and are available to be applied towards satisfaction of the decree now that the stay of execution has eectively come to an end. 13. Although the application is unopposed, the Court is alive to the principle that the absence of opposition does not automatically entitle an applicant to the orders sought. The Court must still be satised that the application is well founded in law and supported by evidence. In this case, the Applicant has exhibited the judgment, the ruling granting conditional stay, the decree, the certicate of costs, the Court of Appeal ruling striking out the appeal, and the bank statement showing the funds presently held in the joint account. Those documents adequately establish the factual basis for the orders sought. 14. The Court is satised that the security deposited pursuant to the stay order has served the purpose for which it was intended. Since the appeal has been struck out, the Plainti is entitled to enjoy the fruits of the judgment, and there is no justication for the continued preservation of the security in the joint account. 15. Accordingly, I nd that the Notice of Motion is merited and is hereby allowed on the following terms: 1. An order is hereby issued directing the Manager, Equity Bank, Mama Ngina Street Branch, to release the money held in the joint names of Nicholas Odera Sumba Advocate And Duncan Kaigi Maina Advocate in the re-designated account number 0150187182438 Equity Bank, Mama Ngina Street Branch, Nairobi, together with all accrued interest thereon, to the rm of N.O. Sumba & Company Advocates for application towards satisfaction of the decree in this suit. 2. The sums so released shall be credited towards the decretal amount due to the Plainti. 3. There shall be no order as to costs. DELIVERED, DATED AND SIGNED VIA MICROSOFT TEAMS THIS 23RD DAY OF JULY 2026. HON. L. G. KIMANI JUDGE ENVIRONMENT AND LAND COURT The Ruling read in the presence ofSumba for Plainti/Applicant No appearance for Defendant/Respondent Bottom of Form https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5497/eng@2026-07-23 3

page 3 of 3