[2012] KEHC 4170 (KLR)
The court found that the applicant failed to comply with the consent order by not filing a memorandum of appeal within the stipulated 14 days. The deposit of KShs 350,000 was made as security for the due performance of the decree in favour of the respondent. Since no appeal was filed, the purpose of the security—to...
Source-derived case information.
- Citation
- [2012] KEHC 4170 (KLR)
- Parties
- Applicant: Berhave Haile Tesfaye; Respondent: Timothy M Wekesa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 691 of 2009
- Procedural Posture
- Civil Case / Ruling on Application for Release of Security Deposit
- Outcome
- Application allowed. Security deposit to be released to respondent. Costs awarded to respondent except for the notice of motion dated 22nd March 2011.
- Judges
- DW Mbuteti
- Legal Topics
- Security for Decree, Stay of Execution, Release of Funds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Berhave Haile Tesfaye
Applicant
Timothy M Wekesa
Respondent
Procedural Posture
Civil Case / Ruling on Application for Release of Security Deposit
Legal Issues
- 1 Whether the respondent is entitled to the release of the KShs 350,000 deposited as security by the applicant.
- 2 Whether the applicant complied with the consent order requiring filing of a memorandum of appeal within 14 days.
- 3 Whether the security deposit should be released to the respondent in the absence of an appeal.
Ratio Decidendi
The court found that the applicant failed to comply with the consent order by not filing a memorandum of appeal within the stipulated 14 days. The deposit of KShs 350,000 was made as security for the due performance of the decree in favour of the respondent. Since no appeal was filed, the purpose of the security—to protect the respondent in the event the appeal failed—became moot. The respondent is therefore entitled to the release of the security deposit towards satisfaction of the decretal sum. The court rejected the applicant's objections, noting that the security was always intended to secure the respondent's decree, and there was no justification for withholding the funds once the...
Court Disposition
Application allowed. Security deposit to be released to respondent. Costs awarded to respondent except for the notice of motion dated 22nd March 2011.
Orders
- The sum of KShs 350,000 deposited in court by the applicant on 4th December 2009 shall be forthwith released to the respondent through his advocates on record, to go towards payment of the decretal sum.
- The respondent shall have the costs of all proceedings in this file, except those of the notice of motion dated 22nd March 2011.
Full Case Text
Judgment text and source record
35 paragraphs
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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE 691 OF 2009
BERHAVE HAILE TESFAYE........................................APPLICANT
V E R S U S
TIMOTHY M WEKESA...........................................RESPONDENT
R U L I N G
1. In this matter, a consent order was recorded on 23rd November 2009 as follows-
“1. The Applicant do file his memorandum of appeal within 14 days of today.
2. The Applicant do deposit in court within 14 days of today the sum of KShs 350,000/00 as security.
3. In default of order 1 or order 2 above, the stay of execution now granted to stand lifted, and the Respondent shall be at liberty to execute the decree.
4. Costs of this application in the appeal.”
2. It is common ground that indeed the Applicant duly deposited the sum of KShs 350,000/00 in court on 4th December 2009.
3. The Respondent has now applied by notice of motion dated 7th February 2012 for the main order that the aforesaid sum of KShs 350,000/00 deposited by the Applicant in court be released forthwith to the Respondent through his advocates towards payment of the decretal sum, which is said to now stand at over KShs 400,000/00. The inherent power of the court has been invoked.
4. The Applicant has opposed the application by replying affidavit sworn by his advocate and filed on 9th May 2012. The grounds of objection emerging from the replying affidavit are -
(i)That the court never ordered that memorandum of appeal be filed within 14 days.
(ii)That the sum of KShs 350,000/00 was deposited as security, and as such the Respondent is not entitled to the money.
5. The averment by the Respondent that no memorandum of appeal was ultimately filed by the Applicant is also denied.
6. I have considered the submissions of the learned counsels, appearing. No authorities were filed.
7. At the hearing of the application, it was conceded by the Applicant’s learned counsel that ultimately no memorandum of appeal was ever lodged. At some point the Respondent had been under the impression that the Applicant had duly filed memorandum of appeal, and he had, by notice of motion dated 22nd March 2011 (which ended up in this file), sought dismissal of “the appeal” for want of prosecution. It turned out that no appeal was lodged after all.
8. Indeed the sum of KShs 350,000/00 was deposited in court by the applicant as security. But what was it securing? Obviously it was securing the decree already in place in favour of the Respondent so that in the event that the Applicant’s appeal (if filed) is dismissed, the Respondent would not have to go to the trouble of executing against the Applicant!
9. As it happened, the Applicant never filed appeal. Why should the Respondent not have access to the money that was meant to secure his decree anyway?
10. I have no hesitation at all in granting the Respondent the orders that he seeks. The sum of KShs 350,000/00 deposited in court by the Applicant on 4th December 2009 shall be forthwith released to the Respondent through his advocates on record, the same to go towards payment of the decretal sum.
11. The Respondent shall also have the costs of all the proceedings in this file, except those of the notice of motion dated 22nd March 2011.
12. It so ordered.
DATED AT NAIROBI THIS 24TH DAY OF MAY 2012
H.P.G. WAWERU
JUDGE
DELIVERED THIS 25TH DAY OF MAY 2012