[2017] KEHC 6576 (KLR)
The court found that the appeal had been fully heard and dismissed, with no further applications pending. The Certificate of Taxation had been issued, confirming the conclusion of the matter. The appellants were duly served with notice of the application for release of funds but failed to appear or oppose. In these...
Source-derived case information.
- Citation
- [2017] KEHC 6576 (KLR)
- Parties
- Appellant: Isaac Kangangi; Appellant: Isaya Kaberia M’Thinyai; Respondent: Rahab Muthoni Mungai substituted by John Ng’ang’a Munyua
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 12 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Post Appeal Application for Release of Deposited Funds
- Outcome
- application allowed
- Judges
- A Mshila
- Legal Topics
- Release of Deposited Funds, Execution of Judgment, Costs Award
- 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
Isaac Kangangi
Appellant
Isaya Kaberia M’Thinyai
Appellant
Rahab Muthoni Mungai substituted by John Ng’ang’a Munyua
Respondent
Procedural Posture
Civil Appeal / Ruling on Post Appeal Application for Release of Deposited Funds
Legal Issues
- 1 Whether the applicant is entitled to the release of Kshs.1,049,574/- deposited in court by the appellant pending appeal.
- 2 Whether there are any pending applications or impediments to the release of the funds.
- 3 Whether the applicant is entitled to costs of the application.
Ratio Decidendi
The court found that the appeal had been fully heard and dismissed, with no further applications pending. The Certificate of Taxation had been issued, confirming the conclusion of the matter. The appellants were duly served with notice of the application for release of funds but failed to appear or oppose. In these circumstances, the applicant is entitled to the release of the deposited funds as the successful party, and to the costs of the application. The court emphasized the principle that a successful litigant should enjoy the fruits of their litigation without undue delay once all legal processes are exhausted.
Court Disposition
application allowed
Orders
- The sum of Kshs.1,049,574/- deposited in court by the appellant is to be released to Gathiga Mwangi & Co. Advocates.
- The applicant is awarded the costs of this application.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CIVIL APPEAL CASE NO. 12 OF 2010
ISAAC KANGANGI
ISAYA KABERIA M’THINYAI.............................................APPELLANTS
VERSUS
RAHAB MUTHONI MUNGAI substituted by
JOHN NG’ANG’A MUNYUA........................RESPONDENT/APPLICANT
RULING
1. The Applicant filed a Notice of Motion under the provisions of Section 3 3A, 1A and 1B of the Civil Procedure Act and Order 51(1) of the Civil Procedure Rules and all other Enabling Provisions of the Law.
2. The Applicant prayed for the following Orders;
(i) That this Honourable Court be pleased to make an order that the sum of Kshs.1,049,574/- deposited in court by the appellant vide receipt No.376388 be released to Gathiga Mwangi & Co. Advocates.
(ii) The costs of this application be awarded to the applicant.
3. The Applicant relied on the grounds on the face of the application and on the Supporting Affidavit made by JOHN NG’ANG’A MUNYUA dated the 14TH February, 2017.
4. The appellant though duly served was absent at the hearing hereof; hereunder is a summary of the applicants submissions;
(i) The monies are from a fatal accident injuries claim; the appellant was ordered to deposit the sum of Kshs.1,049,574/- pending the hearing and determination of the instant appeal;
(ii) The appeal was heard and determined and it was dismissed on the 10/06/2016; that there is no other or further application pending; that a Certificate of Taxation has been issued;
(iii) The applicant prayed that the monies deposited in court be released to his advocates;
5. This court has noted that the appellants’ advocates were duly served with a Mention Notice and were absent at the hearing hereof; the Affidavit of Service is dated the 19th September 2016 and was duly filed in court on the 20th September, 2016.
6. After careful perusal of the court record this court is satisfied that the matter was heard to its logical conclusion and determined with the appeal being dismissed; the Certificate of Taxation is dated the 20/01/2017; and that there is no other or further application pending;
7. In the aforesaid premises the applicant must be allowed to enjoy the fruits of the outcome of his litigation;
DETERMINATION
8. The application for the release of the funds deposited in court is found to be merited and is hereby allowed.
9. The Applicant shall have costs of this application.
Orders accordingly.
Dated, Signed and Delivered at Nyeri this 30th day of March, 2017.
HON.A. MSHILA
JUDGE