[2008] KEHC 200 (KLR)
The court found that the security bond was deposited pursuant to a court order to secure costs pending the determination of the suit. Since judgment had been delivered dismissing the plaintiff's claim with costs to the defendant, and the plaintiff/respondent had not filed any opposition or replying pleadings to the...
Source-derived case information.
- Citation
- [2008] KEHC 200 (KLR)
- Parties
- Plaintiff: Emily Muthoni; Defendant: Gulf Air Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1367 of 2003
- Procedural Posture
- Civil Suit / Post Judgment Application for Release of Security for Costs
- Outcome
- Application allowed. Security bond ordered released to the defendant/applicant. Costs in the cause.
- Judges
- AT Sitati
- Legal Topics
- Security for Costs, Release of Security, Post Judgment Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emily Muthoni
Plaintiff
Gulf Air Co. Ltd
Defendant
Procedural Posture
Civil Suit / Post Judgment Application for Release of Security for Costs
Legal Issues
- 1 Whether the security bond deposited by the defendant should be released following the dismissal of the plaintiff's claim with costs.
- 2 Whether there is any legal or factual basis for retaining the security bond after judgment.
Ratio Decidendi
The court found that the security bond was deposited pursuant to a court order to secure costs pending the determination of the suit. Since judgment had been delivered dismissing the plaintiff's claim with costs to the defendant, and the plaintiff/respondent had not filed any opposition or replying pleadings to the application for release of the bond, there was no longer any justification for retaining the security. The court was satisfied that the defendant/applicant was entitled to the unconditional release of the security bond, as its purpose had been served and no further legal or factual basis existed for its retention.
Court Disposition
Application allowed. Security bond ordered released to the defendant/applicant. Costs in the cause.
Orders
- The Security Bond dated 18/03/2004 in the sum of Kenya Shillings Five Million (Kshs.5,000,000.00) issued by Standard Chartered Bank Kenya Limited, Kenyatta Avenue Branch in favour of this Honourable Court in respect of this case as per Court Order of 5/03/2004 is hereby released to the Defendant/Applicant.
- Costs of this application shall be in the cause.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 1367 of 2003
EMILY MUTHONI ………………....…………………………………PLAINTIFF
VERSUS
GULF AIR CO. LTD……………………………………………….DEFENDANT
RULING
1. Consequent upon the plaintiff’s application dated 2/03/2004 brought under Order 38 of the Civil Procedure Rules seeking inter alia, an order requiring the Defendant, its servants and/or agents to deposit security for costs from a reputable Financial Institution and place the same at the disposal of this Honourable Court or as the court deems fit, for the reason that the Defendant was relocating back its business to the Middle East by the end of March 2004 where the parent company was located, the court made an order on the 5/3/2004 requiring the applicant in the instant application to deposit with a reputable Financial Institution the sum of Kenya Shillings Five Million (Kshs.5,000,000. 00) which amount was to be at the disposal of this Honourable Court until the suit was heard and determined.
2. Pursuant to the said order of 5/03/2004, the Defendant/Applicant deposited a Security Bond with Standard Chartered Bank Kenya Limited Kenyatta Avenue Branch, in the sum of Kenya Shilling Five Million (Kshs.5,000,000. 00) which amount/security Bond was to stand until this suit was heard and determined. According to the wording of the Bond, the same to “stand until the Decree of this Honourable Court be confirmed, reversed or varied by the Appellate court.”
3. By its application dated 24/10/2005 the defendant/applicant prays that the said bond be released to the Defendant/Applicant for the reasons that:?
(a) The Security Bond was to be in place until this Honourable Court delivers Judgment on the Plaintiff/Respondent’s claim;
(b) The judgment in this case was delivered by the Honourable Justice J.L.A. Osiemo on the 21st June 2005 when the Plaintiff’s claim was dismissed with costs to the Defendant/Applicant;
(c) There is no reason at all why the Security Bond should not be released back to the Defendant/Applicant.
(d) It is in the interest of justice and fairness that the said Security Bond be released forthwith.
4. The application is supported by the sworn affidavit of Mohamed Munir Chaudhri dated 24/10/2005. Mr. Chaudhri reiterates the averments in the grounds on the face of the application and says that since judgment in the case was delivered on 21/06/2005 dismissing the Plaintiff/Respondent’s claim with costs against the defendant/applicant, the Security Bond should be released unconditionally to the Defendant/Applicant as the same no longer serves any purpose.
5. The application was fixed for hearing by counsel of the parties on the 6/03/2008, but on the said date, the parties were absent and the application was thus stood over generally. The applicant counsel appeared on 2/04/08 although it is not quite clear how and when this hearing date was taken. That notwithstanding the court allowed the application to proceed. The main reason for this decision was that since the application was first served upon the Respondent’s counsel way back on the 28/10/2005, and even after being served with the hearing notice a second time on the 29/06/2007, the respondents have not filed any Replying pleadings to the Defendant’s/Applicant’s application.
6. After carefully considering the application and the submissions made by counsel for the Defendant/Applicant in the absence of both the Plaintiff/Respondent and her counsel, I am persuaded that there is no reason why the application cannot be allowed. The Plaintiff/Respondent has not controverted the averments as to the facts growing rise to this application.
7. In the result, the only option left to me is to allow the application dated 24/10/2005 and to order that:?
(a) The Security Bond dated 18/03/2004 in the sum of Kenya Shillings Five Million (Kshs.5,000,000. 00) issued by Standard Chartered Bank Kenya Limited, Kenyatta Avenue Branch in favour of this Honourable Court in respect of this case as per Court Order of 5/03/2004 be and is hereby released to the Defendant/Applicant.
(b) Costs of this application shall be in the cause.
Orders accordingly.
Dated and delivered at Nairobi this 5thday of May 2008.
R.N. SITATI
JUDGE
Delivered in the presence of:?