Markem Limited v Nexgen Technologies Limited & 1 other

4. The Applicant therefore prayed that Equity Bank, as an interested and necessary party, be compelled to release the Kshs. 2,000,000 plus accrued interest to it through its advocates, and that costs of the application be awarded to it. 5. The Appellant opposed the application through a replying affidavit sworn on 9 7 2025 by its director. 6. It was deponed that following delivery of the judgment, the Appellant filed a notice of appeal and intended to pursue the appeal, and annexed a copy of the notice. He further stated that the Appellant had applied for typed proceedings of the superior court and was in the process of filing an application for stay of execution in the Court of Appeal, for which the monies deposited as security in this matter might be required. 7. The Application was canvassed by way of written submissions. The Applicant’s submissions are dated 6 10 2025, whilst the Respondent’s submissions are dated 21 07 2025. Analysis and determination 8. Having carefully considered the application, the replying affidavit, and the parties’ submissions, I note that the primary issue for determination is whether the court should issue an order compelling Equity Bank to release Kshs. 2,000,000 together with accrued interest, held in joint account no. 17XXXXX in the names of M s Maina Makome & Co. Advocates and M s E.N. Karomo & Associates Advocates. 9. The background of this matter is that the Appellant lodged the present appeal vide a memorandum of appeal dated 7 6 2023. The appeal was against the judgment in Nairobi CMCC Commercial Suit Number E204 of 2021. 10. On 21 11 2023, the court issued a stay of execution order of the lower court decision upon the deposit of Kshs. 2,000,000 by the Appellant in a joint interest earning account in the names of the parties’ respective counsel on record. The amount was deposited by the Appellant’s counsel as evidenced by the bank statement produced in the 1st Respondent’s supporting affidavit as ‘HNN-1’. 11. Vide a judgement delivered on 19 6 2025, the court dismissed the instant appeal with costs awarded to the 1st Respondent. The 1st Respondent now seeks an order to compel the interested party to release the funds held in the joint account as the Appellant’s advocate declined to sign the mandate in order to release the funds. 12. The Appellant on its part argued that he filed a notice of appeal against the judgement before the Court of Appeal and was in the process of applying for a stay of execution before the appellate court and that the monies deposited as security herein may be required as security in the Court of Appeal. 13. Stay of execution is provided under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows: “ (1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16522/eng@2025-10-30 2

page 2 of 3

14. It is trite law that the lodging of an appeal does not operate as a stay of execution. In this case, although a notice of appeal was filed by the Appellant, a stay of execution has not been issued by the appellate court. 15. In the persuasive decision of Gianfranco Manenthi & Another vs Africa merchant Assurance Co. Ltd [2019] eKLR the court observed: “ The Applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition, a party who seeks the right of appeal from a money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal falls.” 16. The security deposit by the Appellant was to be utilized as security for due performance of the lower court decree. It was a condition before the issuance of a stay of execution of the lower court. 17. As the appeal was dismissed and there being no stay of execution orders from this Court or the Court of Appeal, it follows that the security held in the joint account ought to be released forthwith to the 1st Respondent. 18. Based on the foregoing and in the interest of justice, I allow the application and direct that the amount of Kshs. 2,000,000 - deposited at Equity Bank Limited as security in this matter pursuant to this Court’s order of 21 11 2023, be forthwith released to the Applicant in terms of prayer 3 of the Application. 19. The Applicant, being the successful party, shall have the costs of this Application. 20. It is so Ordered. SIGNED, DATED, AND DELIVERED IN VIRTUAL COURT THIS 30 TH OCTOBER 2025 ADO MOSES JUDGE In the presence of: C A – Moses https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16522/eng@2025-10-30 3

page 3 of 3