REPUBLIC OF KENYA IN THE HIGH COURT AT MAKUENI CIVIL APPEAL NO. E003 OF 2023 ANTHONY MUTUA KALEI…………………………1 APPELLANT/RESPONDENT ST ZACHARIA MWANGANGI………………………..2 APPELLANT/RESPONDENT ND -VERSUSANDREW KAKAYON MOOKE ……………………..1ST RESPONDENT/APPLICANT KILUNGU SAFARIS SELF HELP GROUP …………..2ND RESPONDENT/APPLICANT RULING 1. The Application for determination filed under a Certificate of Urgency is the one dated 16/04/2026. It is brought under Sections 1A, 1B & 3A of the Civil Procedure Act, Order 27 Rule 1, Order 51 Rules 1 of the Civil Procedure Rules and all other enabling provisions of the law seeking the following orders; a) Spent. b) THAT an order be issued that the sum of Kshs. 250,000/= together with all accrued interest held in Equity Bank Limited, Community Supreme Branch joint interest earning account number 0180184513973 in the name of Kimondo RULING: MKN HCCA E003 OF 2023 1
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Gachoka & Co and B.M Mung’ata & Company, as a condition of stay of execution pending the determination of this appeal, be paid and or released to the 1 st Respondent’s Advocates on behalf of the Respondent in partial satisfaction of the judgment and decree in Kilungu CMCC E23 of 2020-Andrew Kakayon Mooke -vs- Anthony Mutua Kalei & Others through the following bank details; Bank: Family Bank Kenya Limited Account Name: B.M Mung’ata & Company Account Number: 073000029074 Branch: Machakos Branch c) THAT the costs of this Application be provided for. d) THAT this honorable court be pleased to make any other or further orders as the circumstances and interests of justice herein may require. 2. The Application is supported by the grounds on its face and the affidavit of Andrew Kakayon Mooke sworn on the same day. He deposed that as a condition for stay of execution of the judgment in Kilungu CMCC E23 of 2020-Andrew Kakayon Mooke -vsAnthony Mutua Kalei & Others pending the hearing and determination of this appeal, the Appellants were, on 03/07/2023, ordered to pay him-through his Advocates a sum of Kshs. 150,000/= and to deposit the balance of Kshs. 254, 050/= in a joint interest earning account opened in the joint names of the parties’ Advocates. RULING: MKN HCCA E003 OF 2023 2
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3. That, in compliance with the orders of this court, the Appellants, on 24/08/2023, deposited Kshs. 250,000/= in a joint interest earning account number 0180184513973 opened in the joint names of the Advocates and held at Equity Bank Limited, Community Supreme Branch. That the signing mandate for any transactions would be signatures from the authorized representatives of both firms of Advocates. 4. That, the appeal was heard to conclusion and dismissed via a judgment delivered on 09/02/2026 but the trial court judgment which was upheld remains unsatisfied. 5. That, his Advocates have on numerous occasions reached out to the Appellant’s Advocates to execute a consent to have the funds held in the joint account released to them but no response has been forthcoming. Email correspondence between the Advocates is exhibited as AKM 2. That, according to advice from his Advocates which he verily believes to be correct, the only way to have the sum of Kshs. 250,000/= released to his Advocates is through an order of this court directed at Equity Bank Ltd. That, the release of the said funds will enable him to enjoy the fruits of the trial court’s judgment. 6. The Respondents did not file any response. 7. Having looked at the Application and the supporting affidavit, the only issue for determination is whether the Application is merited. RULING: MKN HCCA E003 OF 2023 3
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8. On 03/07/2023, this court (Matheka J), issued the following orders; a) “Stay of execution of the judgment and decree in Kilungu PMCC 23 of 2020 pending the determination of the appeal herein be and is hereby granted. b) The Applicant to pay to the 1st Respondent the sum of Kshs. 150,000/= out of the Kshs. 400,000/= decretal sum through his Advocates within 30 days hereof. The balance of Kshs. 250,000/= be deposited in a joint interest earning account within 30 days hereof. c) The Appellant to file and serve the Record of Appeal within 60 days hereof. Mention on 04/09/2023 for compliance. d) In default of (b) or (c) of the order, the stay will lapse automatically.” 9. The appeal was dismissed via a Judgment delivered on 09/02/2026. In upholding the trial court judgment, this court stated; “Having re looked at and evaluated the evidence, the submissions and the judgment of the subordinate court, it is my view that the trial court was able to resolve the conflict in the reports, observe and RULING: MKN HCCA E003 OF 2023 4
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assess the impact of the injuries on the 1 st Respondent to warrant the award of damages in this case. The Appellant has not demonstrated that in those peculiar circumstances of this case, the award was too high to warrant a review. I find that no sufficient ground has been laid to warrant any disturbance of the award. The Appeal is dismissed with costs to the 1 st Respondent.” 10. Consequently, it is evident that the balance of the decretal award deposited in a joint account of both Advocates is due for release to the Applicant herein through his Advocate. The email correspondence shows that the Appellants’ Advocates have not responded to requests of executing a draft consent to facilitate release of the funds. Further, the Appellants have not filed any response hence the application is unopposed. 11. Having held as above, it is apparent that the Applicant should not be hindered from enjoying the fruits of his judgment. Accordingly, I find the application to be meritorious hence allowed as prayed. Dated, signed and delivered virtually this 9th day of June 2026 J. N. ONYIEGO JUDGE RULING: MKN HCCA E003 OF 2023 5
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