[2017] KEHC 10078 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND ADMIRALTY DIVISION

MISCELLANEOUS CIVIL APPLICATION NO. 298 OF 2013

KENYARIRI & ASSOCIATES ADVOCATES……..………ADVOCATE/APPLICANT

VERSUS

HANS JUERGEN LANGER…….............................................CLIENT/RESPONDENT

RULING NO.3

1. The Decree-Holder has asked the court to order that the Decretal Sum plus accrued interest be released to them.

2. Currently, the said sum was being held in a Joint Account at the NIC BANK, Nkrumah Road Branch, Mombasa, in the names of KENYARIRI & ASSOCIATES ADVOCATES and OPULU & COMPANY ADVOCATES.

3. The money was paid into that Joint Account pursuant to an order which was made in this case on 16th January 2017. When making that Order, the court further made it clear that;

“(3) Provided the decretal amount is deposited within the prescribed 30 days, there shall be a stay of execution until the court at Malindi determines the case filed by Hans Juergen Langer against Christopher Orina Kenyariri, Trading As Kenyariri & Associates Advocates”.

4. The applicant has now informed this court that on 28th September 2017, the Hon. Mr. Justice Weldon Korir struck out with costs, the Malindi Civil Suit No. 20 of 2015.

5. It was the applicant’s position that the said civil suit in Malindi had now been determined completely, thus paving way for the release of the decretal amount to him.

6. But the respondents position was that the application lacked merit as the Malindi case had not been determined on its merits.

7. The respondents had initiated an appeal process to challenge the striking out of the Malindi case. A copy of the Notice of Appeal dated 10th October 2017 was made available to this court.

8. The respondents also indicated that they had filed an application for stay of execution over the decision made by the High Court in Malindi. That statement was contained in the Replying Affidavit of Hans Juergen Langer, which was sworn on 23rd October 2017.

9. Meanwhile, when making submissions on 29th November 2017, Mr. Opulu Advocate said that the High Court at Malindi had granted an order for stay of execution. However, this court was not provided with any proof of the existence of the alleged order for stay of execution.

10. Nonetheless, Mr. Opulu advocate conceded that;

“This court had ordered that the money be deposited pending the determination of the Malindi case. Although that case has been determined, we have commenced a challenge by way of an appeal”.

11. The respondent submitted that it was better that the appeal process be exhausted before the money can be released.

12. In my considered view, the existence of an appeal cannot constitute an order for stay of execution.

13. No, it is not just my view; Order 42 Rule 6 (1) of the Civil Procedure Rules expressly states that;

“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order, but the court appealed from may for sufficient cause order stay of execution of such decree or order....”

14. In the case before me the respondents have neither lodged an appeal nor sought stay of execution. Therefore, based upon my reading of order 42 Rule 6 (1) (above-quoted), I would have no locus to order that there be a stay pending appeal arising from the decision by the High Court in Malindi.

15. Similarly, the High Court in Malindi would have no jurisdiction to grant orders for stay of execution in relation to this case which is before the Commercial & Tax Division of the High Court at Milimani Courts, Nairobi.

16. Of course, each of the respective courts have taken cognizance of what is happening before the other courts. For instance, in the case at Malindi, W. Korir J. expressed himself thus;

“My understanding of the rulings delivered separately and in different cases by Said Chitembwe J. and Fred Ochieng J. is that the respondents are indeed indebted to the Applicant. The learned Judges have, however, stayed execution in order to give the respondents an opportunity to prosecute their claim against the Applicant who is the Defendant in Malindi Hccc No. 20 of 2015”.

17. That was said in the Ruling dated 5th June 2017.

18. Now, the case before the Malindi Court has already been struck out. In effect, there is no longer any suit subsisting.

19. The suit which had previously been in place in Malindi has been determined, by being struck out.

20. The striking out of the suit may not be a determination based on the merits or otherwise of the substantive suit. However, when a suit is struck out by the court, it had been determined.

21. It therefore follows that the order for stay of execution, which was to remain in force until the Malindi case was determined, has now lapsed, following the striking out of the case in Malindi.

22. Accordingly, I find no reason in law or in fact for continuing to have the decretal amount held in the joint account.

23. In the circumstances, I order that the money which is currently being held in the joint account No. [particulars withheld], at the NIC BANK, NKRUMAH Road Branch, Mombasa, be forthwith released by the said bank, to the Decree-Holder, Kenyariri & Associates Advocates. The bank may either remit payment by a Banker’s Cheque or through R T G S. If the bank opts to remit the funds through R T G S, the particulars of the recipient are as follows;

Kenyariri and Associates Advocates

Kenya Commercial Bank Ltd

Moi Avenue Branch, Nairobi

A/C No. [Particulars withheld].

24. Finally, the costs of the application dated 3rd October 2017 are awarded to the Applicant.

It is so ordered.

DATED, SIGNED and DELIVERED at NAIROBI this14th day of December 2017.

FRED A. OCHIENG

JUDGE

Ruling read in open court in the presence of

Dr. Kenyariri for the Advocate/Applicant

Ndegwa for Opulu for the Client/Respondent

Collins Odhiambo – Court clerk.