[2023] KEHC 25522 (KLR)

Alwanyi & another v Macharia t/a Alduricha Investment Limited (Civil Case 1457 of 2000) [2023] KEHC 25522 (KLR) (Civ) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25522 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 1457 of 2000

JN Mulwa, J

November 16, 2023

Between

Ernest Dieni Alwanyi

1st Plaintiff

Kiphina Shiyenyi Odhiambo

2nd Plaintiff

and

Duncan M Macharia t/a Alduricha Investment Limited

Defendant

Ruling

1. For determination is the Plaintiffs Application dated 2/6/2023 2023, brought under Section 1A, 1B,3 and 3A and order 40 Rule 7 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. The Applicant seeks the followinga.Spentb.That this Honourable court be pleased to discharge its stay orders made on 30/5/2023 by the Honourable Mr. Justice Hatari Waweru.c.That this Honourable court be pleased to order the release of the funds deposited on the 18/7/2013, in the joint call account Number 7080540 027 NCBA formerly known as commenced Bank of Africa in pursuant to the orders issued on 30th May,2013 together with accrued interest be released to the Applicants/Plaintiffs’ Advocate.d.That in the alternative the monies held in a joint call account No.7050540027 AT NCBA Kshs. 346,620 plus accrued interest be released to the Plaintiffs/Applicants’ advocates and the balance of Kshs. 75,000/= together with interest be released to the Plaintiffs/Applicants advocates as part of their costs which was taxed at Kshs. 175,931/= (read as Kenya Shillings One Hundred and Seventy-Five Thousand, Nine Hundred and Thirty-One Only) on 24/02/2014e.That Costs of this application be provided for.

2. The Application is supported by an Affidavit sworn by Dr.John M Khaminwa the Plaintiffs/Applicants’ Advocate. It is predicated on the grounds that the judgment was entered on 20th June 2005 by Hon.Justice Ransey in favour of the Plaintiffs/Applicants, and being aggrieved by the said judgment lodged. In the interim, they obtained an order of stay of execution upon an application which was granted upon the Applicants depositing in a joint interest earning account the sum of Kshs. 346,620/= pending hearing and determination of the Appeal being Court of Appeal Case No.138/2013, which was finalized by a judgment dated 2/9/2022 and the decretal sum reduced from Kshs. 421,620/= to 346,620/=. The Applicants further deponed that it’s been 18 years since judgment was rendered and that they need to enjoy the fruits of the judgment. It is further submitted that law firms under which the money was deposited are no longer active. It is therefore urged that the said money be released to them.

3. The Respondents did not file any response to the Application despite service upon them.Order 40 Rule 7 Civil Procedure Rules, 2010 provides that;“Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order.”

4. The provision primarily grants the Court discretion to discharge or vary or even set aside an injunction order if the ends of justice so demand, or if the injunction does not serve the ends of justice it was intended to serve when it was issued. Needless to say that the interim injunction was only issued because the Court was satisfied that it would serve the interests of justice in the matter pending the hearing and determination of the Appeal, which Appeal has since been determined, I therefore agree entirely with the view taken by Munyao Sila J in Filista Chamaiyo Sosten vs Samson Mutai [2012] eKLR, in which he stated thus:"...the discretion under Order 40 Rule 7 ought to be sparingly used so as to avoid a situation where it would appear as if the same is being used as a tool for appeal. This is because before issuing an injunction, the court must have been satisfied that it was necessary to grant the same. If it were not satisfied, the court would not have issued the injunction in the first place..."

5. From the evidence placed before this court, it is clear that the Applicants indeed deserve to have their judgment money and enjoy the fruits. The court notes that the deposit was in joint names of the parties Advocates law firms: Mr. Albert Khaminwa Advocate now deceased, and Onyancha BW’Omote and Co. Advocates who had delegated the same to Mr. Kennedy Kenanz BW’Omote and the Applicants’ advocates as signatories to the joint account as stated above.

6. The Court of Appeal therefore having determined the appeal, there is no reason to have the money which had been deposited as security for the due performance of the decree continue being held as such, as it serves no purpose.

7. The upshot is that the Application dated 2/6/2023 is merited and allowed in the following terms:a.That the amount of ksh.346,620/= plus accrued interests and the balance of Kshs.75,000/= deposited in a joint account (A/C no. 7080540027 NCBA formerly Bank of Africa) in the names of both advocates be released forthwith to the firm of Khaminwa & Khaminwa Advocates, together with the accrued interest.b.The firm of Onyancha BW’Omote & Company advocates who act for the Respondent is hereby directed to sign a letter of instructions to NCBA authorizing release of the money with accrued interest to the firm of Khaminwa & Khaminwa Advocates on behalf of the Applicants.

8. In the circumstances of this matter, I direct that each party bears own costs of the Application.Orders accordingly.

DELIVERED, DATED AND SIGNED IN NAIROBI THIS 16TH DAY OF NOVEMBER 2023. JANET MULWAJUDGE