[2021] KEHC 7066 (KLR)
The court found that since the applicant's appeal was allowed, the impugned judgment was set aside, and the suit was ordered to be retried, there was no legal basis for withholding the decretal sum. The absence of any pending appeal or process challenging the High Court's judgment further entitled the applicant to...
Source-derived case information.
- Citation
- [2021] KEHC 7066 (KLR)
- Parties
- Appellant: Kamahuha Limited; Respondent: George Njoroge Njeri & Mercy Wanjiru Njeri (Suing as the legal representatives of the estate of Samuel Ndegwa Njeri-Deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 713 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion for Release of Decretal Sum
- Outcome
- Motion allowed; decretal sum to be released to applicant.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Release of Decretal Sum, Stay of Execution, Appeal Outcome, Retrial Order
- 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
Kamahuha Limited
Appellant
George Njoroge Njeri & Mercy Wanjiru Njeri (Suing as the legal representatives of the estate of Samuel Ndegwa Njeri-Deceased)
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion for Release of Decretal Sum
Legal Issues
- 1 Whether the applicant is entitled to the release of the decretal sum deposited in court.
- 2 Whether there is any pending appeal or process barring the release of the funds.
Ratio Decidendi
The court found that since the applicant's appeal was allowed, the impugned judgment was set aside, and the suit was ordered to be retried, there was no legal basis for withholding the decretal sum. The absence of any pending appeal or process challenging the High Court's judgment further entitled the applicant to restitution. The court therefore ordered the release of the Kshs.800,000 deposited in court to the applicant, holding that each party should bear its own costs given the nature of the Motion.
Court Disposition
Motion allowed; decretal sum to be released to applicant.
Orders
- The decretal sum of Kshs.800,000 deposited in court on 6th April, 2010 shall be released to the applicant within the next 30 days.
- Each party shall bear its own 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. 713 OF 2009
KAMAHUHA LIMITED..............................................APPELLANT/APPLICANT
VERSUS
GEORGE NJOROGE NJERI & MERCY WANJIRU NJERI
(Suing as the legal representatives of the estate of
SAMUEL NDEGWA NJERI-Deceased............................................RESPONDENTS
RULING
1. This ruling is precipitated by the Notice of Motion dated 28th October, 2020 brought by the appellant/applicant and sustained by the grounds set out on its face and the facts stated in the affidavit of Sarah Weru,the Senior Legal Officer of the applicant. The order sought is that of a release of the decretal sum of Kshs.800,000/= previously deposited in court by the applicant on 6th April, 2010.
2. The Motion is unopposed since the record shows that the respondents did not file any documents to oppose it despite being given time to do so by this court.
3. At the hearing of the Motion, the applicant chose to rely on the affidavit evidence.
4. I have considered both the grounds set out on the face of the Motion and the facts deponed in the supporting affidavit.
5. The respondents herein filed a fatal accident claim against the applicant before the trial court on behalf of the estate of Samuel Ndegwa Njeri (“the deceased”) and sought for damages plus costs of the suit and interest thereon. The suit was defended by the applicant.
6. The record shows that upon hearing the parties, the trial court found the applicant 100% vicariously liable and awarded the respondents a sum of Kshs.1,083,330/= which was later reduced to a sum of Kshs.800,000/=.
7. Being dissatisfied with the trial court’s decision, the applicant lodged an appeal against the same and sought an order for a stay of execution pending appeal, which this stay was granted by this court vide the ruling delivered on 7th April, 2010 on the condition that the applicant deposits the decretal sum of Kshs.800,000/= in court. It is apparent from the record that the applicant complied with the above condition.
8. Upon hearing the parties on the substantive appeal, this court in its judgment delivered on 5th July, 2016 allowed the appeal and consequently set aside the impugned judgment, thereby ordering that the suit be retried by a different magistrate of competent jurisdiction.
9. There is nothing to indicate that an appeal has been filed or is in the process of being filed against the judgment of this court. As such, I am satisfied that applicant is lawfully entitled to the decretal sum.
10. The upshot therefore is that the Motion dated 28th October, 2020 is meritorious and is allowed as prayed by ordering that the decretal sum of Kshs.800,000/= deposited in court on 6th April, 2010 be released to the applicant within the next 30 days. Upon considering the nature of the Motion, I find that a fair order on costs would be for each party to bear its own costs.
Dated, Signed and Delivered at Nairobi this 13th day of May, 2021.
A. MBOGHOLI MSAGHA
JUDGE
In the presence of:
Ms. Sosion holding brief Mrs Omondi for the Appellant/Applicant
Ms. Sagara holding brief for Mr. Kebongo for the Respondents