Githara Chuchu & 473 Others Members of Gititu Coffee Growers Co-operative Society Limited v Gitutu Coffee Growers Co-operative Society Limited & 1 other

3. The Appeal, and which was filed in the Court of Appeal as Nairobi Court Of Appeal Civil Appeal No. 269 Of 2014 (kenya Planters Co-operative Union Ltd V. Githara Chuchu & 473 Other Members Of Gititu Coffee Gowers Co-operative Society Ltd & Another), was found to have merit and allowed, hence ending in favour of the Appellant (the 2nd Defendant herein). The Court of Appeal delivered the judgment on 27th September 2019. Which is six years ago. The said judgment set aside this Court’s judgment together with all consequential orders; such as the stay orders of 17th February 2006. 4. The 2nd Defendant has in this Application stated that despite this matter having been in courts for over 30 years now, and despite there being a Court of Appeal judgment in its favour, the Plaintiffs’ Advocate has disregarded requests from its Advocates, to execute the necessary documents to enable the said deposited funds to be released to the 2nd Defendant’s Advocate. 5. The 2nd Defendant has in this Application contended that the said Appeal having succeeded as it did, there is no reason why the said deposited money should not be released. It further contends that it should enjoy the fruits of the judgment. It is therefore seeking the release of the said money (the deposited Ksh 5 Million) together with all the accrued interest. 6. It is by this Application seeking an order that within seven (7) days or such other period as this Court may direct, the Plaintiffs’ said Advocates Nabutete & Company Advocates, do execute the necessary instruction letter and/or consent authorizing NCBA Bank Kenya PLC to uplift the principal sum and accrued interest held in the joint Account No. {particulars withheld}, and to credit the Bank Account of Hamilton Harrison And Mathews Advocates For The 2Nd Defendant, At Hamilton Harrison & Mathews Client A/C, Standard Chartered Bank Kenya Limited, Chiromo Branch, Account No. {particulars withheld}, Bank Code - 02, Branch Code - 084, Swift Address: Scblkenxxxx. 7. Further that in default of compliance with that, the Deputy Registrar of the Civil Division of this Court, in place of the firm of Nabutete & Company Advocates, do execute the necessary instruction letter and/or consent authorizing NCBA Bank Kenya PLC to uplift the principal sum and interest accrued held in that joint Account No. {particulars withheld}, and to credit the monies to the Bank Account of Hamilton Harrison & Mathews The 2nd Defendant’s Advocate. Namely Hamilton Harrison & Mathews Client A/C, Standard Chartered Bank Kenya Limited, Chiromo Branch, Account No:{particulars withheld}, Bank Code - 02, Branch Code - 084, Swift Address: Scblkenxxxx. 8. The Plaintiffs have through their said Advocate (Nabutete & Company Advocates) opposed the Application through a Replying Affidavit of Simon Chuchu sworn on 28th July 2023, and also by a Preliminary Objection. As both were raising more or less similar opposition, and the Objection was not on jurisdiction, this Court directed that the Objection be argued alongside the Application, and be disposed in the same ruling. 9. The Plaintiffs’ opposition to the Application, was mainly that the said deposited money was paid by a Co0operative Bank Bankers cheque, hence it cannot be said to have been deposited by the 2nd Defendant, as that Co-operative Bank is a stranger to this suit. 10. Further that the Plaintiffs suspect the money of the said Banker’s cheque, were the funds of their Co-operative Society - Gitutu Coffee Growers Co-operative Society LTD. Hence that, that money therefore belonged to them as members of the Society. Further that the 2nd Defendant amended this Application to hide the identity of the Plaintiffs; and that this to them is corruption. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18569/eng@2025-11-25 2

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Determination 11. As for the Preliminary Objection, I hold that it is not only too argumentative, but it is also one that is raising factual and unadmitted facts, and which requires a factual inquiry to establish them. 12. This is an improper objection to be raised as a Preliminary Objection, in terms of the decision in the celebrated case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Co. Ltd [1969] EA 696,where the defunct East Africa Court of Appeal in restating the principles for preliminary injunctions, and decrying the improper raising of preliminary objections, stated that a preliminary objection like what used to be called a demurer should raise a pure point of law, which if raised can determine a suit or matter in limine. That it should not raise factual matters that need to be established through evidence or through a factual inquiry. The Plaintiff’s Preliminary Objection not being on a pure point of law, but on factual matters that need to be established through evidence and fact-finding, is therefore an improper one, hence is hereby dismissed. 13. As for the plea for the release of the said monies deposited by the 2nd Defendant and currently on a joint Bank Account in the names of both Advocates, I hold that where a stay pending Appeal is conditional on the 3rd Defendant as Judgment-Debtor, depositing money as security for the due performance of the decree, and the money was thereupon deposited as ordered; once the Appeal is dismissed, such money as has been deposited as such security, is for release to the Judgment-Debtor. This is a practical fact that does not need any rationalization, logicalization or theorizing. If not, for any other reason, then for the reason that the trial court’s judgment having been set aside, there is no longer a decree to satisfy. 14. Just like there is no longer reason for the Defendants to pay the Plaintiffs on that decree, there is also no longer reason for the deposited security to remain on the said Bank Account that is in the joint names of the Advocates for the Plaintiffs and the 2nd Defendant. The continued holding of the monies on the said Account, will be an absurdity. Yet the law abhors absurdity. 15. For those reasons, there is no legal justification or lawful excuse why the said monies should not be released to the 2nd Defendant or its Advocate, at its direction or on its instructions. I therefore find this Application to have merit, and allow it accordingly. In terms that: a. The Plaintiffs’ Advocates Nabutete & Company Advocates, is hereby ordered to within 14 days from the date of this ruling, execute the necessary instruction letter and/or consent, authorizing NCBA Bank Kenya PLC to uplift the principal sum and accrued interest held in the joint Account No. {particulars withheld}, and to credit the same to the Bank Account of Hamilton Harrison & Mathews, 2Nd Defendant’s Advocates, On Hamilton Harrison & Mathews Client A/C, Standard Chartered Bank Kenya Limited, Chiromo Branch, Account No. {particulars withheld}, Bank Code-02, Branch Code-084, Swift Address: Scblkenxxxx. b. In default, the Deputy Registrar of the High Court Civil Division, to in place of the said law firm of Nabutete & Company Advocates, execute the necessary instructions, authorizing NCBA Bank Kenya PLC to uplift the principal sum and interest accrued held in the joint Account No. {particulars withheld}, and to credit the same to the account of Hamilton Harrison & Mathews The 2Nd Defendant’s Advocates, On Hamilton Harrison & Mathews Client A/C, Standard Chartered Bank Kenya Limited, Chiromo Branch, Account No. {particulars withheld}, Bank Code-02, Branch Code-084, Swift Address: Scblkenxxxx. c. The Plaintiffs shall bear the costs of this Application. DATED AND DELIVERED AT NAIROBI ON THIS 25TH DAY OF NOVEMBER 2025 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18569/eng@2025-11-25 3

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PROF (DR) NIXON SIFUNA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18569/eng@2025-11-25 4

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