[2024] KEHC 7194 (KLR)
The court found that the applicant had failed to file the intended appeal within the 60 days stipulated by the consent order and had not opposed the respondent's application for release of the security deposit. The court held that the applicant's inaction amounted to abandonment of the appeal, and the respondent,...
Source-derived case information.
- Citation
- [2024] KEHC 7194 (KLR)
- Parties
- Applicant: Dauglas Kamathi; Respondent: Moses Mutuma
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E003 of 2024
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion for Release of Security Deposit
- Outcome
- application allowed; security deposit released; file closed
- Judges
- TW Cherere
- Legal Topics
- Stay of Execution, Security for Costs, Appeal Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dauglas Kamathi
Applicant
Moses Mutuma
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion for Release of Security Deposit
Legal Issues
- 1 Whether the respondent is entitled to release of the security deposit following the applicant's failure to file the intended appeal within the stipulated period.
- 2 Whether the applicant's inaction constitutes abandonment of the appeal warranting closure of the file.
Ratio Decidendi
The court found that the applicant had failed to file the intended appeal within the 60 days stipulated by the consent order and had not opposed the respondent's application for release of the security deposit. The court held that the applicant's inaction amounted to abandonment of the appeal, and the respondent, having been denied the fruits of his judgment, was entitled to the release of the KES 500,000 security deposit. The court therefore allowed the respondent's application and ordered the release of the funds to the respondent's advocates, and closed the file.
Court Disposition
application allowed; security deposit released; file closed
Orders
- KES 500,000 deposited as security shall be released to the respondent’s advocates Mutegi Mugambi & Co. Advocates via Credit Bank Account No. 017xxxx0159.
- This file is closed.
Full Case Text
Judgment text and source record
22 paragraphs
Kamathi v Mutuma (Civil Appeal E003 of 2024) [2024] KEHC 7194 (KLR) (13 June 2024) (Ruling)
Neutral citation: [2024] KEHC 7194 (KLR)
Republic of Kenya
In the High Court at Meru
Civil Appeal E003 of 2024
TW Cherere, J
June 13, 2024
Between
Dauglas Kamathi
Applicant
and
Moses Mutuma
Respondent
Ruling
Background 1. By an order dated 16th January, 2024, this court issued an exparte order for stay of execution of the decree in MERU CMCC E320 OF 2022 upon the Applicant depositing KES. 500,000/- with the court.
2. On 29th February, 2024, counsel for both parties entered into a consent reiterating the order for deposit of KES. 500,000/- and a further order that the intended appeal be filed and served within 60 days.
3. Applicant deposited the sum of KES. 500. 000/- on 19th January, 2024 but has to date not filed the intended appeal.
4. By notice of motion dated 09th May, 2024, Respondent seeks release of the deposited security to his advocate on the ground that Applicant has not filed the intended appeal.
5. Applicant’s counsel though served on 06th June, 2024 neither appeared nor opposed the application.
6. I have considered the notice of motion dated 09th May, 2024. The Respondent was denied the fruits of his judgment on the basis that Applicant intended to appeal the judgment in MERU CMCC E320 OF 2022. It however appears that the Applicant has lost interest in pursuing the appeal.
7. Consequently, the notice of motion dated 09th May, 2024 is considered and allowed in the following terms:a.KES. 500,000/- deposited as security in this matter shall be released to the Respondent’s advocates MUTEGI MUGAMBI & CO. ADVOCTES vide Credit Bank Account No. 017xxxx0159b.This file is closed
DATED AT MERU THIS 13th DAY OF June 2024WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Applicant - N/A for Kimondo Gachoka & Co. AdvocatesFor Respondent - Mr. Mutegi for Mutegi Mugambi & Co. Advocates