[2024] KEELC 4452 (KLR)
The court found that the respondent was entitled to the release of the Kshs.200,000 security for costs because the appeal had been finalized, the costs had been taxed at Kshs.208,975, and no reference or objection had been filed against the taxation. The purpose of security for costs is to secure the successful...
Source-derived case information.
- Citation
- [2024] KEELC 4452 (KLR)
- Parties
- Appellant: Gilbert Kinyua; Respondent: Peter Mutethia Mugambi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E051 of 2021
- Procedural Posture
- Environment and Land Appeal / Ruling on Post Judgment Application for Release of Security for Costs
- Outcome
- application allowed
- Judges
- CK Nzili
- Legal Topics
- Security for Costs, Release of Deposit, Taxation of Costs, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gilbert Kinyua
Appellant
Peter Mutethia Mugambi
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Post Judgment Application for Release of Security for Costs
Legal Issues
- 1 Whether the respondent is entitled to the release of the Kshs.200,000 security for costs deposited by the appellant.
- 2 Whether there is any legal cause shown to withhold the release of the security for costs after taxation of costs.
Ratio Decidendi
The court found that the respondent was entitled to the release of the Kshs.200,000 security for costs because the appeal had been finalized, the costs had been taxed at Kshs.208,975, and no reference or objection had been filed against the taxation. The purpose of security for costs is to secure the successful party's ability to recover costs if the appeal fails. Since the appellant did not oppose the application or provide any reason to withhold the funds, and the conditions for release had been met, the court allowed the application and ordered the release of the deposited amount to the respondent.
Court Disposition
application allowed
Orders
- The deposited security for costs of Kshs.200,000 shall be released to the respondent instead of the depositor.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
Kinyua v Mugambi (Environment and Land Appeal E051 of 2021) [2024] KEELC 4452 (KLR) (29 May 2024) (Ruling)
Neutral citation: [2024] KEELC 4452 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment and Land Appeal E051 of 2021
CK Nzili, J
May 29, 2024
Between
Gilbert Kinyua
Appellant
and
Peter Mutethia Mugambi
Respondent
Ruling
1. The court, by an application dated 26. 2.2024, is asked to order the release of Kshs.200,000/= security for costs. The reasons, as contained in the supporting affidavit of Peter Mutethia Mugambi sworn on 26. 2.2024, that the appeal was finalized on 26. 1.2022, the appellant had been ordered to furnish security, which he did on 14. 7.2021, costs of the appeal have been taxed at Kshs.208,975/= and that the said amount should be released to him to defray the costs assessed against the respondent.
2. When the application was served upon the firm of Kiogora Arithi Advocates on record for the respondent who was the appellant, it applied to cease acting for the appellants dated 26. 10. 2023. The respondent, therefore, appeared in person on 7. 3.2024 during which the said law firm was discharged from acting in the matter. The respondent was given 14 days to respond to the application. At the writing of this ruling, no response had been filed.
3. Security for costs under Order 42 of the Civil Procedure Rules is for the due realization of the decree should the appeal not succeed. In this appeal, Kshs.200,000/= arose out of a conditional stay order granted on 3. 5.2021, pursuant to an application dated 28. 4.2021, by the respondent. No cause has been shown as to why the same should not be released to the successful party in the appeal, now that the costs were taxed by the Deputy Registrar at Kshs.208,975/= on 30. 11. 2023.
4. There is no reference filed against the taxation. The upshot is that I find the application with merits. It is hereby allowed with no order as to costs. The deposited cost shall be released to the respondent instead of the depositor.
DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 29TH DAY OF MAY, 2024In presence ofC.A KananuAppellantNo appearance for defendantsHON. C K NZILIJUDGE