Vision Scientific & Engineering Kenya Ltd v Ngunah Enterprises (Civil Appeal E062 of 2025) [2026] KEHC 5824 (KLR) (10 March 2026) (Ruling) Neutral citation: [2026] KEHC 5824 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MOMBASA CIVIL APPEAL E062 OF 2025 G MUTAI, J MARCH 10, 2026 BETWEEN VISION SCIENTIFIC & ENGINEERING KENYA LTD ..................... APPELLANT AND NGUNAH ENTERPRISES .................................................................. RESPONDENT RULING 1. In a ruling delivered by this court on 19th September 2025, the notice of motion dated 7th March 2025 was allowed on the condition that the decretal sum of Kes 17,909,834.97 be deposited in a joint interest-earning account in the name of the advocates for both parties within 30 days of the date thereof. 2. The said decision was delivered in the presence of both parties’ counsel. 3. Vide a notice of motion dated 24th October 2025, the appellant seeks to have the said order varied, firstly by reduction of the security amount and also for the applicant to provide (an) instrument(s) rather than cash, as the security. It was urged that the company wasn’t able to raise the security sum, but is able to provide an alternative security. 4. The application was contested. The respondent asserted that the machine ofiered was not worth the decretal sum. Ms. Celestine Ngunah, representing Ngunah Enterprises Ltd, stated that the respondent lacked the capacity to store the machine ofiered as security and would incur additional expenses and charges. She explained that the respondent had obtained a loan from financial institutions to buy the equipment from the applicant and was consequently accruing losses and extra charges, as the loan was payable with interest. She stated that there was a valid judgment on record and that the respondent was entitled to proceed with execution unless sufficient security equal to the decretal sum was provided. 5. The applicant filed written submissions dated 16th December 2025. The respondent opted not to file written submissions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5824/eng@2026-03-10 1
page 1 of 2
6. In the submission of the appellant, it was urged that depositing the entire decretal sum would cause the appellant undue hardship. 7. I have agonized over this matter. Certainly, the order for the deposit of security should not cause undue hardship or be a fetter to the appellant’s right to access justice. But at the same time, there is a regular judgment on record, whose fruits the respondent cannot access due to the appeal filed by the appellant. The orders I issued on 19th September 2025 were intended to strike a balance between two competing interests. 8. Having considered the matter at length, I am inclined to review and revise my earlier order so as not to cause undue hardship to the appellant, while at the same time giving the respondent an assurance that should the appeal fail, it will get the decretal sum in full. 9. I therefore order that the appellant, in lieu of depositing the entire decretal sum in a joint interestearning account, provide a bank guarantee or insurance bond of Kes17,909,834.97, within 14 days of the date hereof, failing which the respondent will be at liberty to execute for the entire decretal sum. 10. I direct that the bank guarantee, or the insurance bond, be provided by a reputable bank or insurance firm. The bank guarantee or the insurance bond should be issued strictly on the basis that upon the delivery of judgment by the High Court, in respect of this appeal, the sum of Kes17,909,834.97 shall be paid to the successful party without any conditions whatsoever. 11. Regarding costs, I order that costs shall be costs in the appeal. 12. It is so ordered. DATED AND SIGNED AT MOMBASA, THIS 10TH DAY OF MARCH 2026. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of: Mr Mulwa for the Appellant/Applicant; No appearance for the Respondent; and Ms Bancy - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5824/eng@2026-03-10 2
page 2 of 2