[2017] KEHC 6784 (KLR)
The court found that the appellant had complied with the order to deposit Kshs. 50,000 as security for stay of execution pending appeal. Upon the appeal being allowed, there was no longer any justification for the continued retention of the security deposit. The respondent did not oppose the application or...
Source-derived case information.
- Citation
- [2017] KEHC 6784 (KLR)
- Parties
- Appellant: Jason Ondabu t/a Andabu & Co. Advocates; Respondent: Dr. Moses Kinuthia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 264 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Post Judgment Application for Release of Security Deposit
- Outcome
- Application allowed. Orders granted as prayed. No order as to costs.
- Judges
- LM Njuguna
- Legal Topics
- Security for Costs, Stay of Execution, Release of Funds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jason Ondabu t/a Andabu & Co. Advocates
Appellant
Dr. Moses Kinuthia
Respondent
Procedural Posture
Civil Appeal / Ruling on Post Judgment Application for Release of Security Deposit
Legal Issues
- 1 Whether the appellant is entitled to the release of the Kshs. 50,000 deposited as security for stay of execution after the appeal was allowed.
- 2 Whether the respondent would suffer prejudice if the security deposit is released to the appellant.
Ratio Decidendi
The court found that the appellant had complied with the order to deposit Kshs. 50,000 as security for stay of execution pending appeal. Upon the appeal being allowed, there was no longer any justification for the continued retention of the security deposit. The respondent did not oppose the application or demonstrate any prejudice that would result from the release of the funds. Accordingly, the court held that the appellant was entitled to the release of the deposited sum.
Court Disposition
Application allowed. Orders granted as prayed. No order as to costs.
Orders
- The sum of Kshs. 50,000 deposited as security for stay of execution pending appeal to be released to Jason Ondabu, Equity Bank Limited, Fourways Branch, Account No.020167212241, Nairobi.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 264 OF 2008
JASON ONDABU T/A ANDABU & CO. ADVOCATES.....APPELLANT/APPLICANT.
VERSUS
DR. MOSES KINUTHIA...................................................RESPONDENT/RESPONDENT
RULING
The notice of motion dated the 10th January, 2017 has been brought under sections 1A, 1B, 3 and 3A of the Civil Procedure Act and all other enabling provisions of the law. It has sought the following orders;
1. That the Honourable Court do order for the release to the Appellant the sum of Kshs. 50,000/= which had been deposited as security for stay of execution pending the hearing and determination of the Appeal.
2. That the deposited amount be released to Jason Ondabu, Equity Bank Limited, Fourways Branch, Account No.020167212241, Nairobi.
3. That the costs of this application be in the cause.
The application is supported by the affidavit of Jason Ondabu sworn on the 10th January, 2017. The facts in support of the application as captured in the said affidavit are that; the appeal herein arose from the ruling of the Hon. A. Ireri (Mrs) in Milimani CMCC No. 6546 of 2007.
That as a condition for stay of execution pending appeal, the Appellant was ordered to deposit a sum of Kshs. 50,000/= as security which he deposited as ordered. The appeal was heard and in a judgment delivered on the 31st October, 2016, it was allowed.
That it is only fair and just that the said sum of Kshs. 50,000/= be released to the Appellant as the Respondent will not suffer any prejudice if the orders are granted.
The Respondent did not oppose the application. He did not even attend court when the application came up for hearing.
The court has considered the application and the affidavit in support. The appeal herein was allowed on the 31st day of October, 2016. The sum of Kshs. 50,000/= was being held as security pending the hearing and determination of the appeal.
In the premises, I find merit in the application dated 10th January, 2017 and the same is granted as prayed. But with no orders as to costs.
Dated, Signed and Delivered at Nairobi this 23rd Day of February, 2017.
…………………
L. NJUGUNA
JUDGE
In the Presence of
………………. for the Appellant
………………. for the Respondent