[2008] KEHC 2456 (KLR)
The High Court allowed the unopposed application for release of the deposited sum of Kshs.558,804.00 to the decree-holder, as this was a straightforward matter of satisfying part of the decree. However, the court declined to grant liberty to execute for the balance of Kshs.97,390.20, holding that execution matters...
Source-derived case information.
- Citation
- [2008] KEHC 2456 (KLR)
- Parties
- Applicant: Erdemann Company (Kenya) Ltd; Respondent: Ferdinand Kombo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 329 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Chamber Summons for Release of Deposited Decretal Sum and Liberty to Execute for Balance
- Outcome
- Application partly allowed; first prayer granted, second prayer struck out; parties to bear own costs.
- Judges
- DW Mbuteti
- Legal Topics
- Stay of Execution, Release of Decretal Sum, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Erdemann Company (Kenya) Ltd
Applicant
Ferdinand Kombo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Chamber Summons for Release of Deposited Decretal Sum and Liberty to Execute for Balance
Legal Issues
- 1 Whether the deposited sum of Kshs.558,804.00 should be released to the decree-holder.
- 2 Whether the decree-holder should be granted liberty to execute for the balance of Kshs.97,390.20.
Ratio Decidendi
The High Court allowed the unopposed application for release of the deposited sum of Kshs.558,804.00 to the decree-holder, as this was a straightforward matter of satisfying part of the decree. However, the court declined to grant liberty to execute for the balance of Kshs.97,390.20, holding that execution matters fall within the jurisdiction of the lower court that issued the decree, and the decree had not been transferred to the High Court for execution. The High Court's involvement was limited to the application for extension of time to appeal, which had already been dismissed. Thus, only the first prayer was granted, and the second was struck out as misconceived.
Court Disposition
Application partly allowed; first prayer granted, second prayer struck out; parties to bear own costs.
Orders
- The sum of Kshs.558,804.00 deposited in court to be released to the decree-holder through his advocates.
- Prayer for liberty to execute for the balance of Kshs.97,390.20 is struck out as misconceived.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc.App.329 of 2007
ERDEMANN COMPANY (K) LTD ………………………PLAINTIFF
VERSUS
FERDINARD KOMBO ……………………………………DEFENDANT
RULING
On 28th November 2007 the original Applicant herein, ERDEMANN COMPANY (KENYA) LTED, deposited in court the sum of Kshs.558, 804/00 towards the decretal sum awarded by the lower court in fulfillment of a condition for grant and it of a temporary stay of execution pending disposal of its application for further extension of time to lodge appeal out of time. That application was eventually dismissed by a ruling dated 28th February 2008.
The original Respondent, who is the decree – holder in the lower courts, FERDINARD KOMBO, has now applied by chamber summons dated 7th May 2008 for the main order that the aforesaid sum of Kshs.558,804/00 be released to him through his advocates on record towards satisfaction of the decree. That prayer is not opposed, and I hereby grant it. There is a second prayer, that the decree – holder be at liberty to execute “for the balance of Kshs.97, 390/20, being the balance of the price accumulated up and including the 19th day of April 2008". It is not stated in the application what this "price accumulated" might me, but during arguments it transpired that it was meant to be further accumulated interest.
Now, matters of execution of the decree herein belong to the lower court that passed the decree of the Kshs.558,804/00 that well be released to the decree – holder will not satisfy to the decree, let him apply to the lower court opportunity. The decree has not been sent to this court for execution, this court was only dealing with an application for extension of time to file appeal, which application was ultimately refused.
In the result, only prayer No.1 of the chamber summons dated 7th May 2008, which is not opposed, is allowed.
Prayer No.2 is hereby struck out for being misconceived. Parties will bear their own costs of this present application. It is ordered.
DATED AT NAIROBI THIS ……………………….. DAY OF MAY 2008.
H.P.G. WAWERU
JUDGE
DELIVERED THIS 30TH DAY OF MAY 2008