[2018] KEHC 5420 (KLR)
The court found that since the appeal had been dismissed and there was no opposition to the application for release of the decretal sum, there was no legal justification for the continued retention of the funds in the joint account. The applicant, as the successful party, was entitled to the release of the deposited...
Source-derived case information.
- Citation
- [2018] KEHC 5420 (KLR)
- Parties
- Appellant: Edwin Atieno Oulo; Respondent: Tom Mboya
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 214 of 2013
- Procedural Posture
- Civil Appeal / Post Judgment Application for Release of Decretal Sum Following Dismissal of Appeal
- Outcome
- Application allowed. Decretal sum and accrued interest to be released to the applicant's advocates.
- Judges
- JK Mulwa
- Legal Topics
- Release of Decretal Sum, Appeal Dismissal, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin Atieno Oulo
Appellant
Tom Mboya
Respondent
Procedural Posture
Civil Appeal / Post Judgment Application for Release of Decretal Sum Following Dismissal of Appeal
Legal Issues
- 1 Whether the applicant is entitled to the release of the decretal sum deposited in a joint account following the dismissal of the appeal.
- 2 Whether there is any legal basis to continue holding the deposited sum after the appeal has been dismissed.
Ratio Decidendi
The court found that since the appeal had been dismissed and there was no opposition to the application for release of the decretal sum, there was no legal justification for the continued retention of the funds in the joint account. The applicant, as the successful party, was entitled to the release of the deposited sum together with accrued interest. The absence of any pending application or stay further supported the release of the funds to the applicant's advocates for onward transmission.
Court Disposition
Application allowed. Decretal sum and accrued interest to be released to the applicant's advocates.
Orders
- The sum of Kshs.240,000 plus accrued interest shall be released to the applicant's advocates Gordon Ogola, Kipkoech & Co. Advocates for onward transmission to the applicant.
- No orders as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL APPEAL NO. 214 OF 2013
EDWIN ATIENO OULO .................................... APPELLANT
-VERSUS-
TOM MBOYA ................................................... RESPONDENT
(Being an Appeal from Judgment/Decree of the Ag. Senior Principal Magistrate Hon. J. Mwaniki Delivered on 16th October 2013, in NAKURU CMCC No. 1461 of 2010)
RULING
The Applicant, Tom Mboya in his application dated 13th July 2016 seeks the decretal sum of Kshs.240,000/= deposited in a joint interest earning account to be released to him as the appeal upon which the sum was deposited was dismissed on the 7th July 2015.
An attempt to have the appeal reinstated for hearing by the Respondent was dismissed on the 13th June 2016.
The application is not opposed the respondent having failed to file a Replying Affidavit or grounds of opposition though served.
The sum of Kshs.240,000/= was deposited in the joint account of E.M. Orina & Co. Advocates and Gordon Ogola, Kipkoech & Co. Advocates on the 21st May 2014 at the Co-operative Bank, Nakuru Branch – A/C No. 01148506830000.
There being no opposition to the release of the deposit, and the appeal having been dismissed, I find no reason to why the deposit should remain held by the Bank. I allow the application dated 13th July 2016.
The sum of Kshs.240,000/= plus accrued interest shall be released to the applicant's advocates Gordon Ogola, Kipkoech & Co. Advocates for onward transmission to the applicant.
No orders as to costs.
Dated, Signed and Delivered this 21st Day of June 2018
J.N. MULWA
JUDGE