[2017] KEHC 1641 (KLR)
The court found that the appeal had been dismissed for want of prosecution and that the appellant had shown no intention of reviving it. The money deposited in court was security for the due performance of the decree pending appeal. With the appeal dismissed and no steps taken to reinstate it, the basis for holding...
Source-derived case information.
- Citation
- [2017] KEHC 1641 (KLR)
- Parties
- Appellant: Amaranth Enterprises Limited; Respondent: Francis Kaigua t/a Franca Scrap Metal Dealers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 427 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Post Appeal Application for Release of Security Deposit
- Outcome
- Application allowed. Orders granted as prayed.
- Judges
- LM Njuguna
- Legal Topics
- Stay of Execution, Security for Judgment, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amaranth Enterprises Limited
Appellant
Francis Kaigua t/a Franca Scrap Metal Dealers
Respondent
Procedural Posture
Civil Appeal / Ruling on Post Appeal Application for Release of Security Deposit
Legal Issues
- 1 Whether the respondent is entitled to the release of the Ksh. 314,000 deposited in court as security after the dismissal of the appeal for want of prosecution.
- 2 Whether the respondent is entitled to costs of the application and the appeal.
Ratio Decidendi
The court found that the appeal had been dismissed for want of prosecution and that the appellant had shown no intention of reviving it. The money deposited in court was security for the due performance of the decree pending appeal. With the appeal dismissed and no steps taken to reinstate it, the basis for holding the security no longer existed. It was therefore fair and just to release the deposited sum to the respondent, who was the successful party in the lower court and in the application. The respondent was also entitled to the costs of the application and the appeal, as the appellant had failed to prosecute the appeal or oppose the application for release of funds.
Court Disposition
Application allowed. Orders granted as prayed.
Orders
- The sum of Ksh. 314,000 deposited in court by the appellant shall be released to the respondent, Francis Kaigua.
- The respondent shall have the costs of the application and the appeal.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBI
CIVIL APPEAL NO. 427 OF 2008
AMARANTH ENTERPRISES LIMITED...APPELLANT/APPLICANT
VERSUS
FRANCIS KAIGUA
T/A FRANCA SCRAP METAL DEALERS..................RESPONDENT
RULING
This ruling relates to the application dated the 20th day of April, 2017 seeking orders that;
a) The Honourable court be pleased to make orders that the sum of ksh. 314,000 deposited in court by the Appellant be released to the Respondent, Francis Kaigua.
b)Further costs and interest be recovered from the Appellant herein.
c)Costs of the application be provided for.
The application is premised on the grounds on the body of the same and its supported by the affidavit sworn by Kanyi Gakuya, on the 20th day of April, 2017.
The summary of facts as captured in the said affidavit are that; the respondent instituted Cmcc No.13392/2006 against the Appellant who filed an Appeal against the judgment. The Appellant obtained an order for stay of execution, on condition that it deposits in court the decretal sum of Ksh. 314,000 within 30 days. The court further ordered the Appellant to file a record of Appeal within 90 days.
That, though the Appellant deposited the money in court and filed a record of Appeal as ordered by the court, it did not pursue the Appeal and the same was finally dismissed on the 17th day of June, 2015 for want of prosecution. The Appellant has not shown any intention of reviving the same. In the circumstances, the Respondent has urged the court to grant the application as prayed.
When the application came up for hearing, it proceeded exparte. The Respondent did not file a response to the application not withstanding that they had been served with a hearing notice way back on 19th October, 2017.
The court has considered the application and the material before it. The record shows that the Appeal was dismissed on 17th June, 2015, for want of prosecution and since then the Appellant has not shown any interest in reinstating the same.
The money was deposited in court as security pending the hearing and determination of the Appeal. The Appeal having been dismissed as aforesaid, it is only fair and just that the money be released to the respondent.
I therefore allow the application as prayed. The Respondent shall get the costs of the application and the Appeal.
It is so ordered.
Dated, Signed and Delivered at Nairobi this 15th Day of November, 2017.
…………………………….
L. NJUGUNA
JUDGE
In the Presence of
…………………………. For the Plaintiff
…………………………. For the Respondent