Miles Construction & another v Musango & another (Suing in His Capacity as Legal Representative of Joseph Musyoka Musango - Deceased) (Civil Appeal E294 of 2024) [2026] KEHC 7572 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7572 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MACHAKOS CIVIL APPEAL E294 OF 2024 EN MAINA, J MAY 28, 2026 BETWEEN MILES CONSTRUCTION ................................................................ 1ST APPLICANT MUKITI KILONZO .......................................................................... 2ND APPLICANT AND JONATHAN MUSEMBI MUSANGO .......................................... 1ST RESPONDENT BERNARD MUMO MUSANGO ................................................. 2ND RESPONDENT SUING IN HIS CAPACITY AS LEGAL REPRESENTATIVE OF JOSEPH MUSYOKA MUSANGO - DECEASED RULING 1. By the Notice of Motion dated 30th September 2025, the Applicant craves variation of the order of this court, for deposit of half the decretal sum in an interest earning account in the names of the advocates for the parties within sixty (60) days, as a condition for stay of execution, and in its place direct that half the decretal sum be deposited in court within thirty30 days. 2. The application is premised on the ground that it has proved impossible to deposit the sum in an interest earning account due to want of cooperation by the respondents who have failed to provide the requisite documents to enable the applicant to open the joint bank account. 3. The Respondents responded to the application via Grounds of Opposition dated 25th November 2025 which state:“ (i) The application has no basis in both fact and law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7572/eng@2026-05-28 1
page 1 of 2
4. (ii) The application dated 30th September 2025 is an abuse of this Honourable court process. (iii) The application ofiends mandatory provisions of the law and in particular Order 42 of the Civil Procedure Rules 2010. (iv) Further to the foregoing, the Appellant/applicants have deliberately failed to comply with the ruling and/or orders issued on 31st October 2024 primarily by depositing half of the decretal amount herein way out of the time ordered by the court. (v) There must be an end to litigation.” This court’s directions were that the application was to be canvassed through written submissions. However, by the time of writing this ruling only those of the Applicant had been received. Analysis and determination 5. I have considered the application in light of the grounds, the supporting affidavit, the grounds of opposition, the submissions of the learned advocate for the Applicant and the law. There is no negation or rebuttal of the applicant’s explanation for its delay in complying with the second limb of the conditions imposed by the court. In the premises, I am satisfied with the explanation profiered by the Applicant and find that it would be in the interest of justice to grant the order sought. Accordingly, the second limb of the condition for stay is varied so that the Applicant shall now deposit half of the decretal sum in court within twenty one (21) days. In default the Respondent shall be at liberty to execute. 6. The costs of the application shall be borne by the Applicant. Orders accordingly. RULING SIGNED, DATED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS ON THIS 28TH DAY OF MAY, 2026. E. N. MAINA JUDGE In the presence of: Mr. Gaya for the Applicant No appearance for the Respondent Mary - Court Assistant/Interpreter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7572/eng@2026-05-28 2
page 2 of 2