[2018] KEHC 9937 (KLR)
The court found that the decretal sum was deposited as a condition for stay of execution pending appeal. Since the appeal was determined in favour of the applicant and the respondent was only awarded throw away costs, with costs of the appeal being in cause, the applicants are entitled to the release of the funds....
Source-derived case information.
- Citation
- [2018] KEHC 9937 (KLR)
- Parties
- Applicant: Elizabeth Wanjiku Isaac; Applicant: Michael Nthiwa Nthenge; Respondent: Harrison Kamau Kinyanjui
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 128 of 2013
- Procedural Posture
- Civil Appeal / Post Judgment Application for Release of Decretal Sum
- Outcome
- application allowed with conditions
- Judges
- BT Jaden
- Legal Topics
- Release of Decretal Sum, Stay of Execution, Costs Taxation, Appeal Determination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Wanjiku Isaac
Applicant
Michael Nthiwa Nthenge
Applicant
Harrison Kamau Kinyanjui
Respondent
Procedural Posture
Civil Appeal / Post Judgment Application for Release of Decretal Sum
Legal Issues
- 1 Whether the monies deposited in the joint interest earning account should be released to the applicant following the determination of the appeal.
- 2 Whether outstanding throw away costs and auctioneer's costs must be settled prior to the release of the funds.
Ratio Decidendi
The court found that the decretal sum was deposited as a condition for stay of execution pending appeal. Since the appeal was determined in favour of the applicant and the respondent was only awarded throw away costs, with costs of the appeal being in cause, the applicants are entitled to the release of the funds. However, the release is conditional upon payment of the throw away costs and the auctioneer's costs, which have not been disputed. The parties are to agree on the amount payable to the respondent, failing which the costs will be assessed by the court. This ensures that the respondent's entitlement to costs is protected while allowing the applicants to access the funds following...
Court Disposition
application allowed with conditions
Orders
- The application for release of the monies in the joint interest earning account is allowed on condition that throw away costs and auctioneer's costs are paid.
- Parties to agree on the amount payable to the respondent; in default, costs to be assessed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 128 OF 2013
ELIZABETH WANJIKU ISAAC................................................1ST APPLICANT
MICHAEL NTHIWA NTHENGE.............................................2ND APPLICANT
VERSUS
HARRISON KAMAU KINYANJUI..............................................RESPONDENT
RULING
1. The application dated 20th February, 2018 seeks orders that the Honourable Court be pleased to order that the monies deposited in the joint interest earning account No. 10060532058 in the names of Mutembei Gichuru & Co. and R.W Chege & Co. held at Faulu Microfinance Bank Limited be released forthwith to the law firm of Mutembei Gichuru & Co. Advocates.
2. It is stated in the grounds and the affidavit in support of the application that the decretal sum was deposited in court pending the hearing and determination of the appeal. That the appeal was determined on 8th February, 2018 through a judgment in favour of the Appellant/Applicant.
3. The application is opposed. It is stated in the replying affidavit that the costs herein are yet to be taxed and paid. That the Auctioneers costs of Ksh.48,073/= allowed way back on 25th June, 2014 are yet to be paid. That the Respondent’s case has high chances of success and the Applicant has no known assets to meet the costs ordered herein. That the release of the funds held herein may be an impediment towards the execution of the decree that may be passed against the Applicant.
4. The Applicant filed a supplementary affidavit stating that the Respondent was only awarded throw away costs but costs of the appeal were to be in cause.
5. The application was disposed of by way of written submissions. I have considered the said submissions.
6. A perusal of the court record reflects that the decretal sum was deposited as a condition for the grant of stay of execution pending the hearing and determination of the appeal. The appeal was determined vide the judgment herein dated 8th February, 2018. The Respondent was awarded throw away costs with the costs of the Appeal being in cause.
7. The Auctioneers costs claimed by the Respondent have not been controverted but it is stated that the certificate of costs for the taxed auctioneer’s Bill of Costs has not been extracted and served to ascertain the amount.
8. With the foregoing, I allow the application on condition that the throw away costs and the auctioneer’s costs be paid. Parties to agree on the amount payable to the Respondent. In default the costs to be assessed.
Dated, signed and delivered in Nairobi this 19th day of Nov., 2018
B. THURANIRA JADEN
JUDGE