Directline Assurance Company Limited v Alice Ndinga Kitwe & Douglas Kitonga (suing As Administrators Ad Litem of The Estate of Moses Ndunda Deceased) & 1 other

4. Subsequently, the appeal was heard and judgment delivered on 24th June 2024, wherein the appeal was upheld, and it was directed that each party bears its own costs. 5. Despite service, the Respondents neither filed a response to the application nor appeared during the hearing. Issues for determination 6. From the record and the supporting affidavit, the only issue that falls for determination is whether the Appellant is entitled to a refund of the security deposit following the judgment of the appellate court. Analysis and determination 7. It is not in dispute that the Appellant deposited the sum of KES. 500,000 in compliance with the order of this court made on 29th July 2022. The deposit was intended to secure the due performance of the decree in the event the appeal did not succeed. The appeal was successful and the decree of the trial court was thus displaced. 8. The Court of Appeal in Equity Bank Limited v West Link Mbo Ltd [2013] eKLR observed as follows: “ The purpose of an order for security for costs is to protect a successful party against the risks of non-payment of costs by the unsuccessful party. The money is deposited as security for the eventuality that the appeal may not succeed. Once the appeal succeeds, and there is no order for costs against the appellant, then the security deposit is to be released back to the appellant. The court cannot continue to hold on to the money when the reason for its being deposited no longer exists.” 10. Similarly, in Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] eKLR, the Court of Appeal reaffirmed the principle thus: “ It is not normal in civil proceedings for security to be given for the satisfaction of a money decree before it is issued. Nor is it normal for a successful party to be deprived of the fruits of a judgment in his favour without very good reason... Security is not meant to punish the appellant but to protect the respondent and should be refunded once it is no longer necessary.” 11. These decisions reflect the consistent view that once the rationale for depositing security falls away, and there is no prevailing decree or order against a depositor, the court is duty-bound to order restitution. 12. The Respondents, despite being served, did not file any response to the application nor appear at the hearing to oppose it. No reason has been advanced to justify the continued withholding of the funds. 13. Accordingly, the court finds no lawful basis to continue holding the security amount for to do so would be contrary to the principles of justice and efficiency underpinning Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution. 14. In the result, the Notice of Motion dated 08th November 2025 is allowed and it is hereby ordered that: 1. The sum of KES. 500,000 deposited in court as security be released forthwith to the Appellant’s advocates on record 2. There shall be no order as to costs DELIVERED AT NAIROBI THIS 15th DAY OF May 2025 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12184/eng@2025-05-15 2

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WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Mr. Abdirizack For Appellant - Ms. Omollo for COWTOW & Associates For 1st Respondent - N/A for Nelson Kaburu & Co. Advocates For 2nd Respondent - N/A for Shapley Barret & Co. Advocates https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12184/eng@2025-05-15 3

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