[2014] KEHC 8143 (KLR)
The court held that since the appeal was allowed and the lower court's judgment was set aside, the sums paid and deposited by order of the court must be restituted to the appellant. The application for restitution was properly before the appellate court because the payments were made pursuant to its orders. There...
Source-derived case information.
- Citation
- [2014] KEHC 8143 (KLR)
- Parties
- Appellant: Barclays Bank of Kenya Limited; Respondent: Sparkle Food Manufacturers Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 618 of 2000
- Procedural Posture
- Civil Appeal / Ruling on Application for Restitution After Appeal Allowed
- Outcome
- Application for restitution granted as prayed with no order as to costs.
- Judges
- DW Mbuteti
- Legal Topics
- Restitution After Appeal, Stay of Execution, Refund of Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Barclays Bank of Kenya Limited
Appellant
Sparkle Food Manufacturers Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Restitution After Appeal Allowed
Legal Issues
- 1 Whether the appellant is entitled to restitution of sums paid and deposited pursuant to a decree that was set aside on appeal.
- 2 Whether the application for restitution is properly before the appellate court rather than the court of first instance.
Ratio Decidendi
The court held that since the appeal was allowed and the lower court's judgment was set aside, the sums paid and deposited by order of the court must be restituted to the appellant. The application for restitution was properly before the appellate court because the payments were made pursuant to its orders. There being no opposition to the application and no legal impediment, the court granted the orders sought, relying on section 91(1) of the Civil Procedure Act, which mandates restitution in such circumstances.
Court Disposition
Application for restitution granted as prayed with no order as to costs.
Orders
- The respondent shall refund to the appellant KShs 200,000 paid by order of court together with interest at 12% per annum.
- The amount deposited in the joint account together with accrued interest shall be released to the appellant.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL APPEAL NO 618 OF 2000
BARCLAYS BANK OF KENYA LIMITED..….................................APPELLANT
VERSUS
SPARKLE FOOD MANUFACTURERS LIMITED……………….DEFENDANTS
R U L I N G
1. The Respondent herein obtained a decree for money from the lower court. The Appellant appealed against that decree.
2. On 8th December 2000 this court (Sheikh-Amin, J) granted stay of execution of decree pending disposal of the appeal upon two conditions -
(i) That the Appellant do pay to the Respondent KShs 200,000/00 towards the decretal sum.
(ii) That the Appellant do deposit the balance of the decretal sum (KShs 214,785/00) in a joint account to be opened in the names of the advocates for the parties.
The Appellant met both conditions.
3. The appeal was eventually heard. In a judgment dated and delivered on 16th May 2008 (Osiemo, J) the appeal was allowed and the judgment of the lower court set aside. The court further ordered that the suit be retried by the lower court.
5. The Appellant has now applied by notice of motion dated 28th July 2008 under section 91(1) of the Civil Procedure Act, Cap 21 (the Act) for restitution. The restitution sought is two-fold -
(i) That the Respondent do refund to the Appellant the KShs 200,000/00 paid to it by order of court together with interest at 12 per cent per annum.
(ii) That the amount deposited in the joint account together with accrued interest be released to the Appellant.
The Appellant also seeks leave of the court to execute against the Respondent in the event of non-refund of the KShs 200,000/00. The application is supported by an affidavit sworn by one David Swao, a senior legal counsel of the Appellant.
6. The Respondent has not opposed the application, notwithstanding service of the same upon it; there are no papers filed in response.
7. Ordinarily applications for restitution after appeal ought to be made in the court of first instance. However, as the sums sought to be recovered were paid and deposited by order of this court in this appeal, it was appropriate that the application be made here.
8. There is nothing to stand in the way of granting the orders sought, the appeal having been disposed of and the judgment of the lower having been set aside entirely. Section 91(1) aforesaid provides –
“91. (1) Where and in so far as a decree is varied or reversed, the court of first instance shall, on the application of the party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position they would have occupied but for such decree or such part thereof as has been varied or reversed; and for this purpose the court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.”
9. In the circumstances I will grant the application as prayed with no orders as to costs. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 28TH DAY OF JULY 2014
H.P.G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 30TH DAY OF JULY 2014