[2019] KEHC 5487 (KLR)
The court found that the respondent's deposit of the decretal sum in court, without a stay of execution having been granted, did not preclude the applicant from accessing the funds. The respondent did not challenge the earlier ruling denying stay of execution, nor did he obtain court authority for the deposit to...
Source-derived case information.
- Citation
- [2019] KEHC 5487 (KLR)
- Parties
- Appellant: John Mburu Gachau; Respondent: Lawrence Kimanthi Kawelu
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 24 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion for Release of Deposited Decretal Sum
- Outcome
- application allowed
- Judges
- CM Kariuki
- Legal Topics
- Stay of Execution, Release of Decretal Sum, Satisfaction of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mburu Gachau
Appellant
Lawrence Kimanthi Kawelu
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion for Release of Deposited Decretal Sum
Legal Issues
- 1 Whether the sum of Kshs. 583,165 deposited in court should be released to the applicant.
- 2 Whether the deposit of the decretal sum in court satisfies the decree and precludes withdrawal pending appeal.
- 3 Whether the respondent is entitled to retain the deposited sum to secure the outcome of the appeal.
Ratio Decidendi
The court found that the respondent's deposit of the decretal sum in court, without a stay of execution having been granted, did not preclude the applicant from accessing the funds. The respondent did not challenge the earlier ruling denying stay of execution, nor did he obtain court authority for the deposit to operate as a stay. The court held that the applicant, as the successful party, is entitled to the fruits of judgment, and the respondent's actions could not defeat this right. Accordingly, the application for release of the deposited sum was merited and allowed.
Court Disposition
application allowed
Orders
- The Kshs. 583,165 deposited in CC No. 150/2014 Makueni SPM’s court to be released forthwith to the applicant.
- The respondent to pay costs for the application assessed at Kshs. 5,000 within 7 days, in default execution to issue.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MAKUENI
CIVIL APPEAL NO. 24 OF 2018
JOHN MBURU GACHAU.....................................................APPELLANT
-VERSUS-
LAWRENCE KIMANTHI KAWELU.............................RESPONDENT
RULING
1. By a ruling dated 28/09/2018 this court held that;
“The Respondent has demonstrated that he is a man of means and can easily refund the decretal amount should the appeal succeed.”
2. Thus the court dismissed Application for stay of execution sought by the Respondent herein.
3. The Applicant thus went in full throttle to recover the decretal amount.
4. This prompted the Respondent to deposit Kshs. 583,1654/= in court on 09/11/2018 to forestall execution.
5. This has prompted the Applicant to lodge Notice of Motion dated 16/11/2018 seeking orders that Kshs. 583,165/= deposited in court to be released.
6. The Application is supported by the Affidavit of Faith Mutio Mutuku sworn on 16/11/2018 and the grounds on the face of the motion.
7. The Respondent has opposed the Application via Affidavit sworn by Agnes Wangari Gichohi sworn on 16/11/2018.
8. The Respondent contention is that by virtue of depositing the money in court, the decree is satisfied and that if same is withdrawn it may never be recovered in event appeal succeeds.
9. The court considered all the above arguments in a Ruling of 28/09/2018 and found no merit.
10. The Respondent never challenged aforesaid Ruling in the higher court but opted to keep money in court. That could only be done with court authority to enable same to forestall recovery of the decretal amount.
21. The court thus finds merit in the Application and thus makes the following orders:-
1. The Kshs. 583,165/= deposited in CC No. 150/2014 Makueni SPM’s court to be released forthwith to the Applicant.
2. The Respondent to pay costs for the Application assessed at Kshs. 5,000/= within 7 days in default execution to issue.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKUENI THIS 31ST DAY OF MAY, 2019.
.......................
C. KARIUKI
JUDGE