[2022] KEELC 1802 (KLR)
The court found that the applicant had demonstrated sufficient cause for review of the order issued on 24.11.2021, as the court system erroneously reflected the deposit as made by the deceased defendant. Since the respondents did not oppose the application and the applicant's counsel provided an affidavit explaining...
Source-derived case information.
- Citation
- [2022] KEELC 1802 (KLR)
- Parties
- Plaintiff: Fatuma Mohamud Mohammed Mire; Defendant: Japhet Nteere Mwendwa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 260 of 2016
- Procedural Posture
- Review Application / Ruling on Application for Review of Court Orders
- Outcome
- application for review allowed
- Legal Topics
- Review of Court Orders, Stay of Execution, Release of Deposit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fatuma Mohamud Mohammed Mire
Plaintiff
Japhet Nteere Mwendwa
Defendant
Procedural Posture
Review Application / Ruling on Application for Review of Court Orders
Legal Issues
- 1 Whether the court should review its order of 24.11.2021 regarding the release of Kshs. 800,000 deposited as a condition for stay of execution.
- 2 Whether the deposited sum should be released to the correct party given the system reflected the deceased defendant as depositor.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient cause for review of the order issued on 24.11.2021, as the court system erroneously reflected the deposit as made by the deceased defendant. Since the respondents did not oppose the application and the applicant's counsel provided an affidavit explaining the circumstances, the court exercised its discretion to review the order. The court directed that the Kshs. 800,000 be released to the firm of M/s Mwirigi Kaburu & Co. Advocates for onward transmission to the actual depositor, Rose Naitore Mwendwa, upon execution of a discharge of liability by the said firm. This ensured that the funds would be released to the correct party...
Court Disposition
application for review allowed
Orders
- The order issued on 24.11.2021 is reviewed to the extent that Kshs. 800,000 be released to M/s Mwirigi Kaburu & Co. Advocates for onward transmission to Rose Naitore Mwendwa upon execution of a discharge of liability by the said firm.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 260 OF 2016
FATUMA MOHAMUD MOHAMMED MIRE.......................................... PLAINTIFF
VERSUS
JAPHET NTEERE MWENDWA.............................................................DEFENDANT
RULING
1. Through an application dated 28. 1.2022 the court is requested to review the orders issued on 24. 11. 2021.
2. On 27. 9.2021 the applicant was ordered to deposit Kshs. 800,000/= as a condition for grant of stay orders pending hearing interpartes of the application dated 30. 7.2021.
3. By a deposit Ref. No. TT21243JFF6X Kshs. 800,000/= was made but the courts account system reflected the amount as made by Japhet Nteere Mwendwa now deceased.
4. The court on 24. 11. 2021 dismissed the application for stay of execution and ordered the money deposited to be released to the depositor upon verification.
5. Counsel for applicant has sworn an affidavit on 28. 2.2022 explaining the predicaments.
6. The respondents are not opposed to the application. Consequently the court reviews the order issued on 24. 11. 2021 to the extent that the Kshs. 800,000/= be released to the firm of M/s Mwirigi Kaburu & Co. Advocates for onward transaction to the depositor Rose Naitore Mwendwa since she is not reflected in our system upon an execution by the said firm executing a discharge of liability to that effect.
7. Orders accordingly.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 2ND DAY OF FEBRUARY, 2022
In presence of:
Mwirigi for applicant
Gichuki – absent
Court Assistant – Kananu
HON. C.K. NZILI
ELC JUDGE