[2007] KEHC 2211 (KLR)
The court found that the Plaintiff was entitled to the release of the decretal amount deposited in court, as the Defendant's appeal had been dismissed and there was no opposition to the application. The Respondent had previously indicated no objection to the release and had provided the original deposit receipt....
Source-derived case information.
- Citation
- [2007] KEHC 2211 (KLR)
- Parties
- Appellant: Kamal Mechanical Engineering Works; Respondent: Sultan Construction Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 370 of 1985
- Procedural Posture
- Civil Appeal / Ruling on Post Appeal Application for Release of Decretal Sum
- Outcome
- Application allowed; decretal sum to be released to Plaintiff.
- Judges
- JL Osiemo
- Legal Topics
- Release of Deposit, Execution of Judgment, Appeal Dismissal
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamal Mechanical Engineering Works
Appellant
Sultan Construction Co. Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Post Appeal Application for Release of Decretal Sum
Legal Issues
- 1 Whether the decretal amount deposited in court by the Defendant should be released to the Plaintiff after dismissal of the appeal.
- 2 Whether there is any opposition to the Plaintiff's application for release of the funds.
Ratio Decidendi
The court found that the Plaintiff was entitled to the release of the decretal amount deposited in court, as the Defendant's appeal had been dismissed and there was no opposition to the application. The Respondent had previously indicated no objection to the release and had provided the original deposit receipt. There being no legal reason to withhold the funds, the application was allowed as prayed.
Court Disposition
Application allowed; decretal sum to be released to Plaintiff.
Orders
- The decretal amount deposited in court is to be released to the Plaintiff as prayed in Prayers 1 and 2 of the Chamber Summons dated 22nd April 2004.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Appeal 370 of 1985
KAMAL MECHANICAL ENGINEERING WORKS.....…APPELLANT
VERSUS
SULTAN CONSTRUCTION CO. LTD……………….RESPONDENT
RULING
The Plaintiff by this Chamber Summons dated 1st March 2007 and expressed to be brought under Section 3A of the Civil Procedure Act seeks Orders that the decretal amount paid into court be released to the Plaintiff.
The application is supported by an affidavit sworn by Mohamed Akram Khan on 1st March 2007 in which he avers that the Plaintiff had sued the Defendant in the Resident Magistrate’s Court Nairobi in RMCCC No.4146 of 1984. Judgment was delivered on 30th April 1985 in favour of the Plaintiff. The Defendant was dissatisfied and preferred an appeal. The appeal was admitted but on condition that the Defendant deposits a sum of Sh.58,211/= in court.
The appeal was heard but was dismissed on 11th June 1993.
The Respondent was served but he did not file any papers to oppose the application. Mr. Mwangi for the applicant submitted that counsel for the Respondent had written him on 29th April 1996 in which he had stated that he had no objection for the cash deposited by the Defendant being released to the Plaintiff. He also forwarded to him the original cash deposit receipt No.A399394 dated 5th July 1985 to enable him to collect the deposit.
The application being not opposed, the same is allowed in terms of Prayers 1 and 2 of the Chamber Summons dated 22nd April 2004.
Dated and delivered at Nairobi this 17th day of July 2007.
J.L.A. OSIEMO
JUDGE