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ELCDismissedNot stated in the judgment

Okuku v Oyieyo (Environment and Land Miscellaneous Application E002 of 2023) [2026] KEELC 2742 (KLR)

High Court of Kenya (stated as 'RULING DATED AND SIGNED AT KISUMU' by a Judge; exact court division not named in the judgment)
7 May 2026
770 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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The High Court in Kisumu refused to release a Kshs. 200,000 court deposit because the appeal failed and the money must now settle the winning party's costs.

What this practically means

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Executive summary

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The Applicant, through a Notice of Motion dated 1st December, 2025, sought the release of Kshs. 200,000/- held in court, to be paid to his son, Jared Okuku Omondi, through a bank account whose details were provided. The Applicant argued that he stood to suffer serious and substantial pecuniary loss, had already cleared the advocate's fees, and that the application was made without undue delay. The application was supported by a Supporting Affidavit deposing that the sum had been deposited to cover the costs of an intended appeal and that its release would further the overriding objective. The Respondent, William Odongo Oyieo, opposed the application through a Replying Affidavit sworn on 6th February 2026. He explained that the deposit had been ordered on 16th October 2023 as security, pursuant to Order 42 Rule 2(b), as a condition for allowing the appeal to be filed out of time and for staying execution of the lower court's judgment. The appeal was dismissed with costs, and the lower court decree remains unsettled; the total owed, with interest, exceeds the deposit. He asked that the money be released to him in partial settlement of the taxed costs and interest. When the matter was heard orally on 6th May 2026, Jared Omondi Okuku, the Applicant's son, stated he filed the application because his father was out of the country for medication. The court found that the Applicant had not demonstrated the outcome of the appeal nor that the deposit had become due and refundable. The purpose of the security was to protect the successful party if the appeal failed. The application was dismissed with costs to the Respondent, and the money is to remain in court to be paid to the Respondent in partial settlement of costs, interest and the decretal sum.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant demonstrated sufficient grounds for the release of the Kshs. 200,000/- deposited in court as security for costs of the intended appeal

Key legal issues

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01

Whether the security deposit of Kshs. 200,000/- should be released to the Applicant

Holding

The application was dismissed; the deposit is to be held in court and applied towards the Respondent's costs, interest and decretal sum

Reasoning

The deposit was made pursuant to Order 42 Rule 2(b) as a condition for filing the appeal out of time and staying execution. The Respondent averred that the appeal was dismissed with costs (yet to be taxed) and the lower court decree remains unsettled. The Applicant, who bore the burden, did not demonstrate the outcome of the appeal nor that the money had become due and refundable. Releasing the funds would defeat the purpose of the security.

p. 2

Legal principles established

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  • A party who deposits security for the due performance of a decree under Order 42 Rule 2(b) cannot obtain its release where the appeal has failed and the decree and costs remain unsettled; the security is available to offset the successful party's costs.

Court orders

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  1. 1.The application is dismissed
  2. 2.Costs of the application are awarded to the Respondent
  3. 3.The sum of Kshs. 200,000/- shall remain held in court, to be paid to the Respondent in partial settlement of the costs, interest, and the decretal sum

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Not expressly stated; application concerns release of security deposited in court under Order 42 Rule 2(b) in relation to an appeal from the lower court

Relief refused

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Release of the deposit of Kshs. 200,000/- to be paid to the applicant's son, Jared Okuku Omondi, through his bank account

The Applicant failed to demonstrate what the outcome of the appeal was and that the deposit had become due and refundable to him

p. 2

Costs

Costs of the application are awarded to the Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The money shall be held as deposited in court, to be paid to the Respondent in partial settlement of the costs, interest, and the decretal sum.
p. 2disposition - retention of security deposit
The application is dismissed. Costs of the application are awarded to the Respondent.
final orders
The deposit was made pursuant to the provisions of Order 42 Rule (2)(b), which provides that no order for stay of execution shall be made under sub-rule (1) unless such security as the court orders for the due performance of such decree or orders as may ultimately be binding on him has been given by the Applicant.
p. 2statutory basis of the security deposit

Issues in the judgment

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minor

The judgment does not state the case number, the parties' full names on the pleadings, or the specific court (High Court division) in which the ruling was delivered

minor

Internal chronology appears anomalous: the application is dated 1st December, 2025, the Replying Affidavit sworn on 6th February 2026, heard on 6/5/2026, with a receipt showing deposit on 2023-12-13 following a security order of 16th October 2023; also possible typographical errors ('sufier', 'suficient') in the text

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Okuku v Oyieyo (Environment and Land Miscellaneous Application E002 of 2023) [2026] KEELC 2742 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2742/eng@2026-05-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.