[2018] KEELC 244 (KLR)
The court found that the security deposit of Kshs.350,000 was made by the 2nd appellant as a condition for stay of execution pending appeal. Upon dismissal of the appeal and setting aside of the stay orders, and in the absence of any opposition or evidence that the decree has been satisfied, the respondent as decree...
Source-derived case information.
- Citation
- [2018] KEELC 244 (KLR)
- Parties
- Appellant: Gediel Mugambi M’Imaria; Appellant: Stephen Meeme M’Imaria; Appellant: Timothy Kimathi M’Imaria; Respondent: Robert M’Impwi Mungania
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 11 of 2014
- Procedural Posture
- Civil Appeal / Post Judgment Application for Release of Security Deposit
- Outcome
- Application allowed as prayed.
- Legal Topics
- Security for Due Performance, Stay of Execution, Release of Security, Appeal Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gediel Mugambi M’Imaria
Appellant
Stephen Meeme M’Imaria
Appellant
Timothy Kimathi M’Imaria
Appellant
Robert M’Impwi Mungania
Respondent
Procedural Posture
Civil Appeal / Post Judgment Application for Release of Security Deposit
Legal Issues
- 1 Whether the security deposit of Kshs.350,000 deposited by the 2nd appellant should be released to the respondent as decree holder.
- 2 Whether the absence of opposition to the application warrants granting the orders sought.
Ratio Decidendi
The court found that the security deposit of Kshs.350,000 was made by the 2nd appellant as a condition for stay of execution pending appeal. Upon dismissal of the appeal and setting aside of the stay orders, and in the absence of any opposition or evidence that the decree has been satisfied, the respondent as decree holder is entitled to the release of the security deposit. The application was unopposed, and the facts deponed in the supporting affidavit were not controverted. Therefore, the court allowed the application as prayed and ordered the release of the security deposit to the respondent, with costs to be borne by the appellants.
Court Disposition
Application allowed as prayed.
Orders
- The security deposit of Kshs.350,000 deposited in court by the 2nd appellant vide deposit receipt no. 0194604 on 6th August 2014 as security for due performance of the decree in Maua CMCC No. 100 of 2007 shall be released to the respondent.
- The appellants/respondents shall bear the costs of the application.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CIVIL APPEAL NO. 11 OF 2014
GEDIEL MUGAMBI M’IMARIA...................................1ST APPELLANT
STEPHEN MEEME M’IMARIA....................................2ND APPELLANT
TIMOTHY KIMATHI M’IMARIA................................3RD APPELLANT
VERSUS
ROBERT M’IMPWI MUNGANIA.......................................RESPONDENT
RULING
This ruling arises from the notice of motion dated 15th November 2018 brought under order 42 rule 6 (2) & order 51 rule 1 CPR, section 1A 1B and 3A Civil procedure Act. The applicant’s seeking the following orders:
1. That the honourable court be pleased to order that the security deposit of the sum of Kshs.350,000 deposited in court by the 2nd appellant vide deposit receipt no. 0194604 on 6th August 2014 as security for the due performance of the decree issued in Maua CMCC No. 100 of 2007 be released to the respondent.
2. That the costs of this application be provided for.
The application is supported by grounds apparent on the face of that application and an affidavit sworn by Christine Kawira Ungu advocate the same date. In the said supporting affidavit, the applicant deponed that upon delivery of judgment in Maua CMCC no. 100 of 2007 on 6th November 2013, the 2nd appellant filed a notice of motion dated 22nd April 2014 seeking inter alia an order staying execution of the decree and judgment referred herein pending hearing and determination of the intended appeal. It is further deponed that upon hearing the said application, the court rendered its ruling on 24th July 2014 and ordered the 2nd appellant to deposit the sum of Kshs.350,000 in court as security for the due performance of the decree issued in the said CMCC no. 100 of 2007 as a condition for the grant of the order for stay. In compliance with the orders of the court, the 2nd appellant deposited the sum of Kshs.350,000/= in court vide receipt no. 0194604 on 6th August 2014 as security for the due performance of the said decree. It is further deponed that subsequently the appeal was heard and judgment delivered on 25th July 2018 in which the said appeal was dismissed with costs and the orders of stay of the judgment and decree in CMCC no. 100 of 2007 were set aside. The applicant also deposed that the said decree has not been satisfied and no execution has been done. In the result the applicant contends that it is therefore necessary and in the interest of justice that the security deposit of the sum of Kshs.350,000 deposited in court by the 2nd appellant be released to the applicant who is also the decree holder for the due performance of the said decree. That application is not opposed as no replying affidavit or grounds of opposition was filed as a rejoinder. In the absence of any replying affidavit controverting the facts given in the supporting affidavit, the application is therefore allowed as prayed.
The appellants/respondents shall bear the costs of the application. It is so ordered.
READ, DELIVERED AND SIGNED BY E. C. CHERONO, ENVIRONMENT AND LAND COURT JUDGE KERUGOYA AT MERU THIS 7TH DAY OF DECEMBER, 2018.
.............................
In the presence of:
Ms. Munga holding brief for Mwirigi for the respondent
C/A Janet