[2022] KEHC 10530 (KLR)

Kimani & another v Maina (Suing as the Personal Representative of the estate of Peter Withiga Maina-Deceased) (Civil Appeal 152 of 2019) [2022] KEHC 10530 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10530 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 152 of 2019

JK Sergon, J

June 17, 2022

Between

John Njihia Kimani

1st Applicant

William Kipngetich Koech

2nd Applicant

and

Grace Wangari Maina (Suing as the Personal Representative of the estate of Peter Withiga Maina-Deceased)

Respondent

Ruling

1. This ruling is premised on the Notice of Motion brought by the 1st and 2nd appellants/applicants herein dated 11th February, 2022 and supported by the grounds established on its face and the facts stated in the affidavit of the 2nd applicant. The order sought therein is for the release of the motor vehicle registration number KBH 283P (“the subject motor vehicle”) to the 2nd applicant pending the hearing and determination of the appeal.

2. Going by the record, it is apparent that no reply by the respondent was availed to this court for its reference.

3. At the hearing of the instant Motion, the parties were directed to file and exchange written submissions. At the time of writing this ruling, this court had only been availed with the submissions by the applicants.

4. I have considered the grounds presented on the face of the Motion as well as the affidavit in support thereof. I have likewise considered the written submissions on record.

5. It is clear that the Motion concerns itself with the release of the subject motor vehicle.

6. On their part, the applicants state and submit that the subject motor vehicle was attached, proclaimed and advertised for sale sometime in October, 2021 and that this court had previously issued an order stopping the disposal of the said motor vehicle.

7. The applicants also state and submit that the 2nd applicant has since retired and relies on the subject motor vehicle as his sole source of income, and that unless an order for its release is issued, it will continue to waste away and accrue storage charges which may exceed the decretal sum in question.

8. The applicants have indicated their willingness to engage the respondent on the storage costs and related charges.

9. It is also submitted by the applicants that they had previously deposited the decretal sum of Kshs.3,000,000/= in a joint interest earning account but that the same was later released to the respondent and yet the respondent is now seeking a further deposit of the said decretal sum, to the detriment of the applicants.

10. To support their averments above, the applicants have cited inter alia, the case of Arun C Sharma v Ashana Raikundalia t/a A Raikundalia & Co Advocates & 2 others [2014 eKLR where the court determined that:“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the judgment-debtor…”

11. Upon my perusal of the record, I established that following the application dated 5th May, 2021 filed by the respondent herein, the court issued the order on 27th May, 2021 dismissing the appeal for want of prosecution and ordering the release of all sums held in the interest earning account held in the joint names of the parties’ advocates at all material times.

12. Upon my further perusal of the record, I established that the respondent subsequently filed the application dated 30th June, 2021 and sought to have two (2) persons not before the court held in contempt for failing to comply with the abovementioned order of 27th May, 2021 and a further order for the release of all monies held in the joint interest earning account.

13. The record shows that the abovementioned application was marked as settled by the court on 27th July, 2021 on the basis that the security had been released. This supports the averments made by the applicants that the decretal sum was released to the respondent.

14. The record also shows that subsequently, the applicants filed the application dated 24th November, 2021 seeking to reinstate the appeal and further seeking an order for a stay of execution of the decree pending appeal.

15. Upon hearing the aforesaid application, this court vide the ruling delivered on 4th February, 2022 allowed the same by setting aside the dismissal order and reinstating the appeal together with the respondent’s earlier mentioned application dated 5th May, 2021. This court further granted an order for a stay of execution pending appeal.

16. From my study of the record, it is apparent that the application of 5th May, 2021 is now spent since the decretal amount has since been released to the respondent.

17. In view of the foregoing circumstances, I am of the view that it would be prejudicial to the applicants to require them to deposit a further sum of Kshs.3,000,000/=. It would be equally prejudicial to the 2nd applicant in particular, for the subject motor vehicle to continue being held and/or attached in respect to the decree in question.

18. I am satisfied that it would be in the interest of justice and fairness for me to grant the order sought in the present instance.

19. Consequently, I allow the Notice of Motion dated 11th February, 2022 and hereby order that the motor vehicle registration number KBH 283P be released to the 2nd appellant/applicant within the next seven (7) days. I also make a further order that the parties do share the storage costs and related charges incurred equally.

20. Upon considering the nature of the Motion, I find it fair and reasonable to order which I hereby do, that each party should bear its own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. ...........................J. K. SERGONJUDGEIn the presence of:………………………………… for the 1st and 2nd Appellants/Applicants………………………………… for the Respondent