Kiharu Bookshop v Longhorn Publishers Plc

reference to the court, in which case, the respondent herein will be at liberty to proceed with execution. e. 2. 3. That the applicant shall pay the auctioneers fees if any the same to be agreed upon failure of which to be taxed in the manner as provided by the law. The appellant did not comply with the terms of the said ruling and by application dated 3rd January 2025 he went back to the same court seeking the following two orders; a. That the order requiring the applicant to deposit Kshs 250,000 within thirty days be extended to 6 months or such time the court may deem fit. b. That the costs of the application be provided for. The lower court disallowed the latter application vide its ruling dated 17th February 2025 which precipitated this appeal which sets out five grounds. In the appeal, the appellant filed a notice of motion dated 17th March 2025 which has the following prayers. a. Spent. b. Spent. c. The applicant/appellant be allowed to liquidate the first installment due to the respondents in the sum of Kshs 250,000.00 within 6 months from the date of this application. d. The costs of this application be provided for, 4. It is the above application to which this ruling relates. The respondent has opposed the application through an affidavit of Dennis Kariuki sworn on 1st April 2025. The main ground of the application is that the appellant has health challenges and is not able to pay the deposit at once. The respondent opposes the application by arguing that the applicant has not demonstrated his inability to pay the deposit at once. It also submits that the appellant has not demonstrated that he will suffer substantial loss if the application is not allowed. 5. I have read the submissions of the appellant dated 22nd August 2025 and those of the respondent dated 18th August 2025. I note from the submissions of both parties as well as the application that the appellant seeks to be allowed to liquidate the deposit ordered by the trial court in installments. The prayers are couched in a way that suggests that the appellant is seeking to liquidate the decretal sum while the ruling being appealed was to the effect that the amount was to be deposited in court. The two are different in that; whereas liquidation of a decretal sum involves payment with no desire to have it returned or reverted to the appellant later in case he is successful, payment of security deposit is meant to a neutral holder be it the court or a third party with the intention of preserving the same pending outcome of an event or further orders of the court. 6. I also find the submissions by the parties off the mark because they are clearly on an application for stay of execution pending an appeal while the application before me seeks payment of the deposit by installment. I have gone through the memorandum of appeal which seeks to overturn the ruling of the trial court and prays for the following orders; a. The appeal be allowed. b. The period within which the appellant is supposed to liquidate the first tranche of the decretal sum in the sum of Kshs 250,000.00 be extended by a further six months from the date of this appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/680/eng@2026-01-30 2

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c. 7. The costs of this appeal and of the suit in the lower court be borne by the respondent. I find the orders sought in the memorandum of appeal to be similar and substantially the same as those sought in the application. An application which seeks to the same orders as those in the substantive or main appeal is an attempt to prosecute the appeal through a shortcut. If the application is allowed, it will have the effect of allowing the entire appeal. That is a situation which should not be encouraged as it would amount to compromising an order of the trial court without following due process. I resonate with position taken by Honourable Justice W.M. Musyoka in Osodo v Osodo [2025] KEHC 19137 (KLR) where held that; ‘The danger with seeking a permanent injunction in the main suit, and then filing an interlocutory application for a temporary injunction order pending the suit, is that the same facts will have to be considered, and the determination, at the interlocutory stage, may be a pointer to what may happen at the main hearing. It is a very thin line. Indeed, in suits of this nature, where similar prayers are sought in the plaint and in an interlocutory application, the main suit may, obliquely, be disposed of, unintentionally, at the interlocutory stage. Parties ought to be careful, with what they seek at the interlocutory stage, to obviate the possibility or risk of weakening their cases, or having them substantially or finally determined, at that point.’ 8. The conclusion which must emanate from the above is that I find the application dated 17th March 2025 incompetent and lacking in merits. It is hereby dismissed with costs to the respondent. 9. This matter shall be placed before the presiding Judge for further orders and directions in respect of the appeal on a date to be given after delivery of this ruling. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF JANUARY 2026. B.M. MUSYOKI JUDGE OF THE HIGH COURT. Judgment delivered in presence of Mr. Ochieng the respondent and in absence of the appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/680/eng@2026-01-30 3

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