[2017] KEHC 1813 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CIVIL APPEAL NO. 55 OF 2017

GERALD IRERI HARISON…......…1ST APPELLANT/APPLICANT

FELISTA IRERI………………....…2ND APPELLANT/APPLICANT

DAVID MWANGI IRERI………......3RD APPELLANT/APPLICANT

V E R S U S

DANSON NGARI………............................................RESPONDENT

R U L I N G

1. This is a ruling on an application dated 22/11/2017 seeking orders that the sum of Kshs.2,151,320/= already deposited in court in CMCC No. 27 of 2017 be applied in this appeal as the security for the due performance of the decree in pursuance of the ruling of this court delivered on 20/11/2017.

2. The grounds in support of the application are that on 7/11/2017 Hon. M.N. Gicheru in the application to show cause ordered that the applicants execute a bond of KShs.2,151,320/= a sum equal to the decretal amount pending appearance of the parties before the trial magistrate Hon. S.K. Mutai. When the parties appeared before S.K. Mutai on 20/11/2017, the magistrate said he was not possessed of jurisdiction to deal with the matter since it was already in the high court and that stay pending appeal had been granted.

3. The applicants argued that since the high court had already directed that the decretal sum be deposited in court, it would not make sense for the amount to be withdrawn and deposited in this case.

4. The application was opposed by the respondent on grounds that the applicant has shown utter indolence in this matter. He ought to have applied for release of the bond deposited in the lower court and utilized it as deposit of security in this appeal.

5. The respondent further argued that the applicant has failed to comply with the orders of this court to deposit the decretal sum within 3 days. The result of the non-compliance is that there is no stay pending appeal and that the respondent may proceed to execute.

6. It is important to look at the chronology of events in this matter. This court granted orders for stay pending appeal to the applicant on 20/11/2017 and directed that the decretal amount of KShs.2,151,320/= be deposited in this court within 3 days. At the time the ruling was delivered, little did the court know that the same amount had been deposited as bond in CMCC No. 27 of 2017 to secure the attendance of the applicants before the trial court.

7. When the parties appeared before the trial court on 21/11/2017 the magistrate must have been notified that this court had already granted orders for stay pending appeal. For this reason, he declared that he had no jurisdiction to deal with the matter any further. The magistrate was right in that the stay orders were still valid since the three days period of depositing the decretal amount had not expired.

8. The reason behind giving the applicants 3 days to deposit is because their counsel had told this court during the hearing of the application that his clients were ready with the cheques totaling to Kshs.2,151,320/=. It is unfortunate that another magistrate other than the trial court had already ordered that the amount be deposited in execution of bond to secure release of the applicants. This being the position, it does not make sense to withdraw the said amount from the lower court and have it deposited afresh in pursuance of this court’s ruling. To this extent, the parties are in agreement that this would be an exercise in futility. The Judiciary account for the high court and the magistrate’s court is one and what may differ is the content of the receipt as regards the particulars of the case and the names of the parties.

9. From the facts of this application, it is not in dispute that stay pending appeal was granted on 20/11/2017 with conditions. Neither is it in dispute that the applicants were ready and willing to deposit the decretal amount as security for the due performance of the decree and that the said amount was available during the hearing of the application. The only hindrance to the applicants complying with the 3 days period was because the amount was held in execution of the bond.

10. Considering the process involved in deposit and release of funds in court, it was wrong for the Hon. Magistrate to direct that the money meant for the decretal amount be deposited in execution of bond. The bond has now been overtaken by events and the deposit held by the court is not serving any useful purpose. In my considered opinion, it would have been deposited as the decretal amount in the same case. The applicants cannot be faulted for failing to comply with the 3 days period for depositing the money because it would not have been possible to do so within the time line granted.

11. The respondent was right to say that the applicants have not acted with speed to move the court where necessary which has in some instances costed them their freedom. All these hustles would have been avoided had the applicants and their counsel attended to the issues arising from time to time with due diligence.

12. Finally, I agree with the applicants that there is no need of withdrawing the amount deposited in execution of the bond and depositing it afresh as security.

13. I find the application merited and hereby order that the said amount be converted as security in pursuance to this court’s ruling delivered on 20/11/2017 with extension of time from 3 days to the date of this ruling.

14. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 5TH DAY OF DECEMBER, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Ms. Migwi for Guantai for respondent