Buildway (K) Ltd v Ogolo [2025] KEHC 4757 (KLR)

Buildway (K) Ltd v Ogolo (Civil Appeal E569 of 2023) [2025] KEHC 4757 (KLR) (Civ) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 4757 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E569 of 2023

TW Cherere, J

March 27, 2025

Between

Buildway (K) Ltd

Appellant

and

Remjius Okongo Ogolo

Respondent

Ruling

1. The factual background in this matter are not in dispute. Judgment was entered in favour of the Respondent against the Appellant on 22nd July 2022 in Milimani SCCOMM E720 of 2022. Upon filing the appeal, the Appellant obtained stay of execution on 29th July 2022, on the condition that half the decretal sum be deposited in court by 15th August 2022. The Appellant duly deposited KES. 111,471 as directed.

2. Subsequently, the appeal was heard and dismissed by a judgment delivered on 24th July 2024, with costs awarded to the Respondent.

3. Before this Court is a Notice of Motion dated 18th December 2024 brought under Sections 1A, 1B and 3A of the Civil Procedure Act, and Order 22 Rule 1 and Order 51 of the Civil Procedure Rules. The Respondent seeks an order that the sum of KES. 111,471 deposited by the Appellant as a condition for stay of execution be released to his advocates following the dismissal of the appeal.

4. The Respondent seeks release of the deposited funds to his advocates. The Appellant was duly served with the application but did not file any response and failed to attend the hearing. The application is therefore unopposed.

5. It is trite that the purpose of a conditional stay pending appeal is to preserve the fruits of the judgment for the successful litigant should the appeal fail. In Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410, the Court emphasized that a successful party should not be deprived of the fruits of judgment except for good cause. This principle was reiterated in Absalom Dova v Tarbo Transporters [2013] eKLR, where the court stated that “security is not meant to be a punishment but rather a cushion to the successful litigant.”

6. The appeal having been dismissed, the Respondent is entitled to the amount held as security. There is no legal or equitable basis for continuing to hold the sum in court, especially since the Appellant has not challenged this application.

7. Accordingly, I find that the notice of motion dated 18th December 2024 is merited and it is hereby ordered that:1. The sum of KES. 111,471 deposited in court by the Appellant as security for stay of execution shall be released to the Respondent’s advocates on record.2. The Respondent shall have the costs of this application.It is so ordered.

DELIVERED AT NAIROBI THIS 27TH DAY OF MARCH 2025WAMAE.T. W. CHEREREJUDGEAppearancesCourt Assistant - Mr. WandereFor Appellant - N/A for Maranga Nyagute & Co. AdvocatesFor Respondent - Ms. Ataka for ABKAdvocates LLP