[2011] KEHC 1438 (KLR)
The court found that the correct total award to the respondent, as adjusted by the appellate judgment, was Kshs. 413,575. Since the respondent had already received Kshs. 475,799 from the appellant, she had been paid more than the amount due under the judgment. Therefore, she was not entitled to the release of the...
Source-derived case information.
- Citation
- [2011] KEHC 1438 (KLR)
- Parties
- Appellant: Dhara Wholesalers Ltd.; Respondent: Teresiah Kaimenyi Muthamia (Suing as the administratrix of the estate of the deceased Zacharia Kithure M’Mbijiwe)
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 57 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion for Release of Funds Post Appeal Judgment
- Outcome
- application dismissed
- Judges
- MM Kasango
- Legal Topics
- Execution of Judgment, Damages Assessment, Release of Funds, Fatal Accidents, Post Judgment Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dhara Wholesalers Ltd.
Appellant
Teresiah Kaimenyi Muthamia (Suing as the administratrix of the estate of the deceased Zacharia Kithure M’Mbijiwe)
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion for Release of Funds Post Appeal Judgment
Legal Issues
- 1 Whether the respondent is entitled to the release of Kshs. 103,285.80 held in a joint account following the appeal judgment.
- 2 Whether the amount already paid to the respondent exceeds the adjusted award as per the appellate court's judgment.
Ratio Decidendi
The court found that the correct total award to the respondent, as adjusted by the appellate judgment, was Kshs. 413,575. Since the respondent had already received Kshs. 475,799 from the appellant, she had been paid more than the amount due under the judgment. Therefore, she was not entitled to the release of the additional Kshs. 103,285.80 held in the joint account. The Notice of Motion seeking release of those funds was dismissed, and the funds were ordered to be released to the appellant's advocate. The court made no order as to costs for the application.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 3rd March 2011 is dismissed.
- There shall be no orders as to costs in respect of the Notice of Motion.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
HIGH COURT CIVIL APPEAL CASE NO. 57 OF 2007
DHARA WHOLESALERS LTD. ………………………………… APPELLANT
VERSUS
TERESIAH KAIMENYI MUTHAMIA (Suing as the administratrix of the estate
of the deceased) ZAKARIA KITHURE M’MBIJIWE ….....….….. RESPONDENT
RULING
The respondent obtained judgment against the appellant in Meru CMCC No. 249 of 2003 in damages in a case she had filed on behalf of the estate of Zacharia Kithure M’Mbijiwe deceased. The damages that were awarded in that case were in respect of the accident which resulted in the death of Zacharia Kithure M’Mbijiwe deceased. On hearing the case, the Chief Magistrate Court gave the respondent an award of Kshs. 396,000/= for loss of expectation of life. and also awarded special damages of Kshs. 17,575/=. The learned magistrate in error in his final paragraph of his judgment stated:-
“………………….Consequently, I enter judgment for the plaintiff (respondent) against the defendant (appellant) jointly and severally in the sum of Kshs. 533,575/= together with costs of the suit.”
The defendant in that lower court case appealed against that judgment in this appeal. This court heard the appeal and delivered its judgment dated 22nd May 2009. The court in that judgment stated:-
“Save that when dependants sum of Kshs. 396,000/= is added to the special damages Kshs. 17,575/=………..the correct total figure is Kshs. 413,575/= and not Kshs. 533,575/=…………… I would dismiss with costs to the respondent the appellant’s appeal dated and filed on 28th May 2008. ”
That judgment of this appeal is now in contention. The contention that has arisen is because there was an amount of Kshs. 103,285. 80/= held in the joint account under the names of the law firm representing the appellant and the law firm representing the respondent. Following the judgment of this appeal, the respondent requested the appellant do release that amount to her that was deposited. The appellant declined. In declining, the appellant argued that this court judgment in this appeal adjusted the judgment of the chief magistrate court and that being so, the amount already so far paid to the respondent is Kshs. 475,799/=. The appellant argued that the amount so far paid to the respondent more than meets the figure adjusted by this court when it delivered its judgment. It will be recalled that this court found that the correct total award of the chief magistrate court should have been Kshs. 413,575/=. The learned magistrate however in doing his additions of the respondent’s claim stated erroneously that the total award was of Kshs. 533,575/=. Because of that contention, the respondent filed a Notice of Motion dated 3rd March 2011. In that Notice of Motion, the respondent seeks the following orders:-
1. That this Honourable Court be pleased to order the release of the sum of Kshs. 103,285. 80/= together with the accrued interest deposited in the joint account of Kiogora Ariithi & Associates Advocates and Wakini Kiarie & Company Equity Bank Ltd Meru Branch vide fixed deposit receipt Number 57466 dated 4th September 2009 to M/S Kiogora Ariithi & Associates Advocates for onward transmission to the applicant/decree holder.
The respondent’s application was opposed by the appellant as stated above. My reading of this court’s judgment is that the judge found that subject to the correct award being reflected, that is, Kshs. 413,575/=, the appellant’s appeal was dismissed. In other words the judge in that judgment adjusted the respondent’s award to be Kshs. 413,575/=. It follows therefore that the respondent having been paid by the appellant Kshs. 475,799/= is not now entitled to further payment. It is for that reason that the Notice of Motion dated 3rd March 2011 is dismissed. There shall be no orders as to costs in respect of that Notice of Motion. The court further makes an order that the amount held at Equity Bank Ltd Meru Branch in favour of Jeminia Wakini Kiarie & Julius Kiogora be released forthwith to Jeminia Wakini Kiarie.
Dated, signed and delivered at Meru this 30th day of June 2011.
MARY KASANGO
JUDGE