[2022] KEHC 12576 (KLR)
The High Court held that it lacked jurisdiction to order the release of the Kshs 2 million deposited as security for stay of execution because the decree in question was issued by the Githunguri Magistrate’s Court and had not been transferred to the High Court for execution as required by sections 30 and 31 of the...
Source-derived case information.
- Citation
- [2022] KEHC 12576 (KLR)
- Parties
- Appellant: Francis Njenga Wachira; Appellant: Peter Ndungu Mwangi; Appellant: Joseph Muiruri Ndungu; Respondent: Teresia Nyokabi Macharia; Respondent: Stephen Kuria Njuguna (suing as legal representative of the estate of Daniel Mburu Njuguna (deceased))
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 93 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Application for Release of Deposited Security
- Outcome
- application dismissed
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Security for Judgment, Execution of Decrees, Jurisdiction of Courts
- 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
Francis Njenga Wachira
Appellant
Peter Ndungu Mwangi
Appellant
Joseph Muiruri Ndungu
Appellant
Teresia Nyokabi Macharia
Respondent
Stephen Kuria Njuguna (suing as legal representative of the estate of Daniel Mburu Njuguna (deceased))
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Release of Deposited Security
Legal Issues
- 1 Whether the High Court has jurisdiction to order release of security deposited pursuant to a stay of execution when the decree has not been transferred for execution to the High Court.
- 2 Whether the respondents are entitled to the release of Kshs 2 million deposited by the appellants as security for stay of execution.
Ratio Decidendi
The High Court held that it lacked jurisdiction to order the release of the Kshs 2 million deposited as security for stay of execution because the decree in question was issued by the Githunguri Magistrate’s Court and had not been transferred to the High Court for execution as required by sections 30 and 31 of the Civil Procedure Act. The court emphasized that only the court which passed the decree, or to which the decree has been transferred for execution, has the authority to make orders regarding the execution of the decree and the release of security deposited in relation to it. Since there was no order transferring the decree to the High Court for execution, and no proof that the...
Court Disposition
application dismissed
Orders
- The application dated October 29, 2021 is dismissed with no orders as to costs.
- The file is to be placed before the Deputy Registrar to ensure the lower court file is brought to the High Court.
Full Case Text
Judgment text and source record
30 paragraphs
Francis Njenga Wachira & 2 others v Teresia Nyokabi & another (Civil Appeal 93 of 2020) [2022] KEHC 12576 (KLR) (16 June 2022) (Ruling)
Neutral citation: [2022] KEHC 12576 (KLR)
Republic of Kenya
In the High Court at Kiambu
Civil Appeal 93 of 2020
MM Kasango, J
June 16, 2022
Between
Francis Njenga Wachira
1st Appellant
Peter Ndungu Mwangi
2nd Appellant
Joseph Muiruri Ndungu
3rd Appellant
and
Teresia Nyokabi Macharia
1st Respondent
Stephen Kuria Njuguna (suing as legal representative of the estate of Daniel Mburu Njuguna (deceased)
2nd Respondent
(An appeal from the judgment of the Senior Principal Magistrate’s Court at Githunguri (Hon. D. Kavedza, SPM) dated 2nd July, 2020 in Githunguri Civil case No. 6 of 2019)
Ruling
1. Before me is an application filed by the respondents. The application is dated October 29, 2021. The respondent seeks the release to them of Kshs 2milion deposited into this court by the appellant.
2. On August 18, 2020, this court ordered the appellants to deposit into this court, Kshs 2million as condition for the granting of interim ex parte stay of execution of the judgment of July 2, 2019 in Githunguri Magistrate’s Court in Civil Case No 6 of 2019. That order of August 18, 2020 required the appellants to deposit the aforestated amount within 21 days. The court receipt in this file however shows that the appellant made that deposit, outside the 21 days period on October 1, 2020. It is that deposit that the respondent seeks to be released to them.
3. The respondents base their prayer on the grounds:-a)That since June 16, 2021 the appellants have not moved the court in this appeal.b)That the appellants have not obtained an order extending the period to make the deposit of Kshs 2 million.c)That the appellants are no longer interested in the appeal.”
4. The application was not opposed by the appellant.
5. I have considered the application. The application is in my view made on misinterpretation of the law. Judgment in favour of the respondents was entered by the Githunguri Magistrate’s Court in Civil CaseNo 6 of 2019 for Kshs 4,484,502. The decree for that amount in favour of the respondents is a decree of the Githunguri Magistrate’s Court. That decree has not been sent to this court for execution as envisaged in section 31 of the Civil Procedure Act. The import of section 30 of that Act is that a decree is only executed in the court that passed it unless it is transferred for execution before another court. There is no order either of this court, nor is it proved to be made by the Githunguri Magistrate’s Court ordering that decree to be executed before this court. In view of that finding, this court has no basis to order the release of the money held by this court. Such an order can only be made by the court which passed the decree.
6. It is because of the above holding that the application dated October 29, 2020 is dismissed with no orders as to the costs.
7. I order this file be placed before the Deputy Registrar for purpose of ensuring the lower court file is brought to this court.
8. Orders accordingly.
RULING DATED AND DELIVERED AT KIAMBU THIS 16TH DAY OF JUNE, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceFor Appellants: - Ms. MainaFor Respondent :- Ms. KimunyaRULING delivered virtually.MARY KASANGOJUDGE