[2017] KEHC 5724 (KLR)
The court found that the application for review was well founded as the mistake in the original application was not controverted by the respondent. The court accepted the appellant's explanation that the decretal sum was paid by the appellant's insurers and not the appellant personally, and that the funds should...
Source-derived case information.
- Citation
- [2017] KEHC 5724 (KLR)
- Parties
- Appellant: Daniel Musau Kimeu; Respondent: John Maloli Kituku
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 183 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Release of Deposited Decretal Sum
- Outcome
- Application for review allowed. Order for release of deposited decretal sum varied to direct payment to appellant's advocate. No order as to costs.
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Review of Orders, Release of Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Musau Kimeu
Appellant
John Maloli Kituku
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Release of Deposited Decretal Sum
Legal Issues
- 1 Whether the court should review its previous order to release the deposited decretal sum to the appellant's advocate instead of the appellant.
- 2 Whether the mistake in the original application regarding the payee of the released funds justifies review.
Ratio Decidendi
The court found that the application for review was well founded as the mistake in the original application was not controverted by the respondent. The court accepted the appellant's explanation that the decretal sum was paid by the appellant's insurers and not the appellant personally, and that the funds should therefore be released to the appellant's advocate. The absence of any opposition or attendance by the respondent further supported granting the application. The court exercised its discretion to review its previous order and directed that the deposited sum be released to the appellant's advocate.
Court Disposition
Application for review allowed. Order for release of deposited decretal sum varied to direct payment to appellant's advocate. No order as to costs.
Orders
- The motion dated 8th February 2017 is allowed as prayed.
- The decretal sum deposited in court shall be released to the appellant's advocate instead of the appellant.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 183 OF 2012
DANIEL MUSAU KIMEU............APPELLANT
- V E R S U S –
JOHN MALOLI KITUKU ....... RESPONDENT
RULING
1. Pursuant to the motion dated 11/4/2012, this court issued an order for stay of execution of the decree pending appeal on condition that the decretal sum of ksh.398,792/= is deposited in court. The aforesaid was eventually deposited in court by the appellant’s advocate on 13th July 2012. This appeal was heard and determined in favour of the appellant on 29. 9.2016. The appellant successfully applied for the aforesaid deposit to be released to him on 29. 11. 2016 pursuant to the motion dated 31. 10. 2016. The appellant is now before this court seeking of the order to be reviewed so that the aforesaid amount should be released to the appellant’s advocate instead of the appellant vide the motion dated 8th February, 2017. The aforesaid motion was served and there was response nor attendance on the part of the respondent hence the motion proceeded to hearing exparte.
2. I have considered the grounds stated on the face of the motion plus the facts deponed in the supporting affidavit. The motion is supported by the affidavit of Mercy Nyabenge.
3. It is the appellant’s submission that a mistake was made in drafting the application which sought for the amount deposited in court as security for the due performance of the decree to be released to the appellant instead of the appellant’s advocate. It said that the aforesaid amount was paid by the appellant’s insurers and not the appellant.
4. The aforesaid averments have not been controverted. I have also no reason to doubt the veracity of those averments. Consequently, I find the motion dated 8th February 2017 to be well founded. It is allowed as prayed with no order as to costs.
Dated, Signed and Delivered in open court this 10th day of April, 2017.
J. K. SERGON
JUDGE
In the presence of:
.................................................... for the Applicant
............................................... for the Respondent