[2016] KEHC 1612 (KLR)
The court found that the deposit in the joint interest earning account was made as a condition for the grant of stay pending appeal, specifically to secure the due performance of the decree. The appeal, which was the basis for the stay, was dismissed by consent of the parties. There was no evidence that the decree...
Source-derived case information.
- Citation
- [2016] KEHC 1612 (KLR)
- Parties
- Respondent: James Maina; Appellant: S. S. Mehta & Sons Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 576 of 2013
- Procedural Posture
- Civil Appeal / Post Appeal, Application for Release of Decretal Sum After Dismissal of Appeal
- Outcome
- Application allowed. Order for release of decretal sum plus interest to respondent's advocates.
- Legal Topics
- Stay of Execution, Decretal Sum Release, Appeal Dismissal, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Maina
Respondent
S. S. Mehta & Sons Limited
Appellant
Procedural Posture
Civil Appeal / Post Appeal, Application for Release of Decretal Sum After Dismissal of Appeal
Legal Issues
- 1 Whether the respondent is entitled to the release of the decretal sum plus interest held in the joint account after dismissal of the appeal.
- 2 Whether the conditions for stay pending appeal have been satisfied and the deposit should now be paid out.
Ratio Decidendi
The court found that the deposit in the joint interest earning account was made as a condition for the grant of stay pending appeal, specifically to secure the due performance of the decree. The appeal, which was the basis for the stay, was dismissed by consent of the parties. There was no evidence that the decree had been settled after the dismissal. Therefore, the respondent was entitled to the release of the deposited sum plus interest to partially satisfy the decree. The motion was allowed as prayed, directing the release of the funds to the respondent's advocates.
Court Disposition
Application allowed. Order for release of decretal sum plus interest to respondent's advocates.
Orders
- The decretal sum plus interest held in joint interest earning account no. 2191732729 with Jamii Bora Bank Ltd shall be paid forthwith to the respondent’s advocates, J. J. Khakula & Co. Advocates.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 576 OF 2013
JAMES MAINA .............................................................REESPONDENT
-V E R S U S –
S. S. MEHTA & SONS LIMITED .....................................APPELLANT
RULING
1) James Maina, the respondent herein, took out the motion dated 22nd August 2016 in which he sought for inter alia an order directing that the decretal sum plus interest held in the joint interest earning account no. 2191732729 with Jamii Bora Bank Ltd be paid to the respondent’s advocates, J. J. Khakula & Co. Advocates forthwith.
2) The motion is supported by the affidavit of James Waheire Maina. The motion was served but did not attract any response from the appellant.
3) It is the submission of the respondent that half of the decretal sum was deposted in an interest earning account as a condition for the grant of the order for stay pending appeal for the due performance of the decree. The respondent attached to his supporting affidavit a copy of the statement of account showing that as of 6th May 2014 a sum of ksh.286,133/- was outstanding in the account. The respondent further stated that since the appeal has now been dismissed the amount should be released to the decree holder to settle part of the decree.
4) I have considered the arguments put forward by the respondent.
It is not in dispute that the trial court granted the appellant an order for stay pending appeal on condition the appellant deposits half the decretal sum for the due performance of the decree on 29. 1.2014. It is also not in dispute that the appeal, the substratum of the order was dismissed by virtue of a consent order recorded by the parties on 12th July 2016 after the lapse of twenty one (21) days. The sum kept in an interest earning account was to last until the appeal is heard and determined. There is no evidence that the decree has been settled after the appeal was automatically dismissed by operation of the consent order. The deposit was meant to settle half of the decretal sum. I find the motion to be well founded. It is allowed as prayed.
Dated, Signed and Delivered in open court this 28th day of October 2016.
J. K. SERGON
JUDGE
In the presence of:
.............................................................. for the Appellant
............................................................... for the Respondent