Gitahi & another v Warugongo [1988] KECA 123 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a bank guarantee is as valid as cash deposit when securing a judgment debt pending appeal, so long as the winning party stays protected.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent was entitled to insist that the balance of the decretal sum be deposited in cash in an interest-bearing account rather than secured by a banker's guarantee
Key legal issues
#Form of security for a decretal sum subject to a stay of execution pending appeal
A bank guarantee is as acceptable as payment into court or deposit in an interest-bearing account; the respondent cannot insist on cash merely because judgment has been entered
The court adopted the English Court of Appeal's approach in Rosengrens Ltd v Safe Deposit Centres Ltd, holding the facts materially identical: judgment had been given and was subject to appeal, and the court's duty was to preserve the rights of both parties without prejudicing the appeal. The respondent was not entitled to make life difficult for the applicant to tempt him into settling, and there was less need to protect the decree-holder since nearly half the sum had already been paid and the balance had been open to negotiation.
Legal principles established
#- On a stay of execution pending appeal, the court must hold the ring even-handedly; the form of security (cash or bank guarantee) is immaterial so long as it is adequate and does not disadvantage the party providing it
Court orders
#- 1.That the sum of Kshs 100,000 be paid over within 14 days of today's date
- 2.The sum of Kshs 120,000 be secured by banker's guarantee within the same period
- 3.The respondent shall give a written undertaking to reimburse the applicant if the damages are reduced
- 4.The disbursement of the Kshs 100,000 will be as set out in the order of January 29, 1988
- 5.In default the stay shall be lifted
- 6.Costs as already ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Stay of execution pending appeal, Court of Appeal
Relief refused
#Deposit of the decretal sum in an interest-bearing account as sought by the respondent
Security may be given in whatever form is least disadvantageous to the party giving it, so long as the opposite party is adequately protected
Costs
Costs as already ordered
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is our duty to hold the ring even-handedly without prejudicing the issue pending the appeal.
So long as it is adequate, then the form of it is a matter which is immaterial.
1) That the sum of Kshs 100,000 be paid over within14 days of today’s date;
Issues in the judgment
#Final order 3 states the sum is to be 'secured by banker's orders' whereas the body of the ruling and the earlier passage say 'banker's guarantee'; the two terms are used inconsistently
The ruling does not name the parties in its title or caption; the record refers only to counsel (Mr Muthoga for Mr Gikandi, Mr Wambua) and the applicant described as a wealthy insurance company
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Energy and Petroleum Regulatory Authority & another v Thirunga (Environment and Land Appeal E026 of 2025) [2026] KEELC 1862 (KLR)[2026] KEELC 1862 (KLR)24 Mar 2026applied
Cite this brief
#Cite this brief
Caselaw, "Gitahi & another v Warugongo [1988] KECA 123 (KLR)", Case Analysis (1988). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/123/eng@1988-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.