[2023] KEHC 886 (KLR)
The court found that the sum of Kshs 162,322 was deposited by the 1st Appellant as security for costs pending the hearing and determination of the appeal. The appeal was determined in favour of the 1st Appellant, entitling it to the return of the deposited sum. The court noted that the Respondents did not oppose the...
Source-derived case information.
- Citation
- [2023] KEHC 886 (KLR)
- Parties
- Appellant: East & Central Africa Enterprises Limited; Appellant: Samuel Muhiunu Kimani; Respondent: Dorcas Wairimu Ndirangu; Respondent: East Africa Star Bakeries; Respondent: William Owiti
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 475 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Post Judgment Application for Release of Security Deposit
- Outcome
- application allowed
- Judges
- JN Mulwa
- Legal Topics
- Security for Costs, Release of Deposit, Post Judgment Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
East & Central Africa Enterprises Limited
Appellant
Samuel Muhiunu Kimani
Appellant
Dorcas Wairimu Ndirangu
Respondent
East Africa Star Bakeries
Respondent
William Owiti
Respondent
Procedural Posture
Civil Appeal / Ruling on Post Judgment Application for Release of Security Deposit
Legal Issues
- 1 Whether the sum of Kshs 162,322 deposited in court as security should be released to the 1st Appellant after the appeal was determined in its favour.
- 2 Whether the absence of the original deposit receipt precludes the release of the deposited funds.
Ratio Decidendi
The court found that the sum of Kshs 162,322 was deposited by the 1st Appellant as security for costs pending the hearing and determination of the appeal. The appeal was determined in favour of the 1st Appellant, entitling it to the return of the deposited sum. The court noted that the Respondents did not oppose the application, and the only impediment to release was the loss of the original deposit receipt, which was explained and not disputed. The court held that in the absence of opposition and given the clear entitlement of the 1st Appellant, it was proper to allow the application and order the release of the funds to the Appellants' advocates for onward transmission to the 1st...
Court Disposition
application allowed
Orders
- The sum of Kshs 162,322 deposited in court by the 1st Appellant is to be released to the Appellants’ Advocates M/s Michael Daud & Associates Advocates for onward transmission to the 1st Appellant.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
East & Central Africa Enterprises Limited & another v Ndirangu & 2 others (Civil Appeal 475 of 2016) [2023] KEHC 886 (KLR) (Civ) (16 February 2023) (Ruling)
Neutral citation: [2023] KEHC 886 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal 475 of 2016
JN Mulwa, J
February 16, 2023
Between
East & Central Africa Enterprises Limited
1st Appellant
Samuel Muhiunu Kimani
2nd Appellant
and
Dorcas Wairimu Ndirangu
1st Respondent
East Africa Star Bakeries
2nd Respondent
William Owiti
3rd Respondent
Ruling
1. Before the court is an application dated July 13, 2021 brought by the Appellants under Order 51 Rule 1 of the Civil Procedure Rulesand Section 34 of Civil Procedure Act.The Appellants seek orders: -a.That the Honourable court be pleased to order the release of Kshs 162,322/- deposited in court by the 1st Appellant to their Advocates M/s Michael Daud & Associates Advocates.b.That costs of the application be provided.
2. It is supported by an affidavit sworn by one Abdirashid Gedi Samatar, the Managing Director of the 1st Appellant on the July 13, 2021, and grounds stated on its face.Though served with the application and hearing notice, the Respondents have opted not to file any responses.
3. I have considered the application and the affidavit in support.The said sum of Kshs 162,322/- was deposited in court as security pending hearing and determination of the appeal by a court order dated July 15, 2016 (Hon Justice A K Ndungu).The appeal was eventually heard and determined by a judgment dated February 27, 2020 allowing the 1st Appellant’s appeal.Following the determination of the appeal, it followed that the deposit ought to be released back to the depositor, the 1st Appellant.
4. That did not, and has not happened as the 1st Appellant’s Advocates depone to have misplaced the original deposit receipt as they moved offices; and upon request to the Deputy Registrar, to present a copy of the receipt, were advised to apply for an order for release of the money hence this application before me. The application is unopposed.
5. There being no opposition to the application, and the court being satisfied that indeed the said money was deposited in court by the 1st Appellant, I find and deem it proper to allow the application in terms of prayer number (a).
6. Consequently, an order is hereby issued that the sum of Kshs 162,322/- deposited in court by the 1st Appellant be released to the Appellants’ Advocates M/s Michael, Daud & Associates Advocates for onward transmission to the 1st Appellant.No orders as to costs.Orders accordingly.
DELIVERED DATED AND SIGNED AT NAIROBI THIS 16TH DAY OF FEBRUARY, 2022. J. N. MULWAJUDGE