Agricultural and Processed Food Products Export Development Authority (apeda) v Krish Commodities Limited

into an interest-earning escrow account under the joint control of Counsel for both parties pending the hearing and determination of the intended appeal. 4. The funds were deposited into Family Bank Account No. 038xxxxxx90 held in the joint names of Josephine Wayua Wambua Company and Simba & Simba Advocates, Advocates then on record for the two parties respectifully. 5. On 3/10/2025, the Court of Appeal heard and dismissed the Appellant's appeal, thereby affirming the judgment and award of costs in favour of the Applicant. 6. The Applicant contends that with the dismissal of the appeal by the Court of Appeal on 3/10/2025, the condition precedent for holding the funds in escrow has lapsed. As concerns the Applicant, it is averred that no other proceedings are pending before any court save for a mere expression by Respondent that it intends to seek leave to file appeal to the Supreme Court, that as at date of this motion, nothing has been filed. 7. The Respondent was served with the motion and on 23/7/2026 attended court by its Advocate Ms. Tanui intimated to court its intention to come on record for the Respondent post judgment. Counsel was granted an opportunity to regularize her status and to thereafter file objections if any. As at 30/07/2026, the court finds no filings whatsoever in respect thereof on record. That said, the motion stands as unopposed. 8. I have considered the affidavit material placed before the court. 9. It is a fundamental principle of civil jurisprudence that a successful litigant should not be deprived of its fruits of judgment without lawful justification as was held in the case of Machira t/a Machira & Co. Advocates v. Maghabush Enterprises Ltd [2002] eKLR 10. Under Order 42 Rule 6(1) of the Civil Procedure Rules, an appeal or intention to appeal does not automatically operate as a stay of execution. For an execution process to be arrested, a party must obtain a specific order of stay from a court of competent jurisdiction upon satisfying statutory conditions. 11. The deposit of Kshs. 1,221,522.00/= into a joint escrow account was an interim measure granted as security for the due performance of the decree pending the Court of Appeal's determination. The substratum of that conditional stay order was the pendency of the appeal. 12. Upon the dismissal of the appeal by the Court of Appeal on 3/10/2025, the underlying appeal came to a final judicial end at that level. In the absence of an order from the Supreme Court or the Court of Appeal staying the enforcement of the decision, the security held in escrow ought to be released to the decree-holder/Applicant forthwith. 13. The Appellant's mere intention to pursue a further appeal to the Supreme Court cannot, in law, act as an embargo against the release of funds. To hold otherwise would be to grant an indefinite, unsanctioned stay of execution in total disregard the Applicant’s right to its judgment proceeds. 14. The escrow account was explicitly ordered to be an interest-earning account. The interest accrued thereon is an accretion to the principal security sum set aside for the decree-holder. 15. Since the Applicant has been vindicated on appeal, it is entitled to both the principal sum of Kshs. 1,221,522.00/= and all interest that has accrued in the escrow account over the duration of the deposit. 16. Consequently, the Notice of Motion dated 6/11/2025 is merited and is hereby allowed in terms stated at prayer 1 and 2 of the application. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11934/eng@2026-07-31 2

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17. The said funds shall therefore be released and paid into the Applicants Advocates Bank account namely; Zamura and Company Advocates Family Bank Account No. 038xxxxxx78 Orders accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 31ST DAY OF JULY 2026. ……………………… JANET MULWA. JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11934/eng@2026-07-31 3

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