[2019] KEHC 5900 (KLR)
The court found that the appellant had deposited the decretal sum in court as a condition for stay pending appeal. The appeal was heard and determined in favour of the appellant, resulting in the dismissal of the lower court suit. There was no evidence that the respondent intended to challenge the judgment or that...
Source-derived case information.
- Citation
- [2019] KEHC 5900 (KLR)
- Parties
- Appellant: Lavington Security Ltd; Respondent: Flora Kamene Kavoi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 574 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Post Appeal Application for Release of Decretal Sum
- Outcome
- application allowed
- Judges
- LM Njuguna
- Legal Topics
- Release of Decretal Sum, Security for Appeal, Stay of Execution, Post Judgment Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lavington Security Ltd
Appellant
Flora Kamene Kavoi
Respondent
Procedural Posture
Civil Appeal / Ruling on Post Appeal Application for Release of Decretal Sum
Legal Issues
- 1 Whether the appellant is entitled to the release of the decretal sum deposited in court as security pending appeal.
- 2 Whether there is any legal basis to withhold the decretal sum after the appeal has been determined in favour of the appellant.
Ratio Decidendi
The court found that the appellant had deposited the decretal sum in court as a condition for stay pending appeal. The appeal was heard and determined in favour of the appellant, resulting in the dismissal of the lower court suit. There was no evidence that the respondent intended to challenge the judgment or that there was any legal basis to withhold the deposited sum. The court confirmed the deposit through the annexed slip and concluded that, since the appeal had been finalized and the security was no longer required, the appellant was entitled to the release of the decretal sum. Accordingly, the application for release of the funds was allowed.
Court Disposition
application allowed
Orders
- The decretal sum of Kshs. 402,265 deposited in court is to be released to the appellant.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBI
CIVIL APPEAL NO. 574 OF 2017
LAVINGTON SECURITY LTD.....APPELLANT/APPLICANT
VERSUS
FLORA KAMENE KAVOI.................................RESPONDENT
(Being an appeal from part of the Judgment of Hon. Senior Principal Magistrate Mr. D. W. Mburu delivered on the 28th of October, 2016 in CMCC No. 1795 of 2015)
RULING
This ruling relates to the application dated the 6th day of June, 2019, brought by the Appellant/Applicant under Orders 51 Rule (1), 42 Rule 32 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The order sought by the applicant is for release of kshs. 402,265/- being the decretal sum deposited in court.
It is based on the grounds set out on the body of the same and it’s supported by the annexed affidavit sworn by Raymond Koech, on 6th day of June, 2019.
The application is not opposed by the respondent and when it came up in court on 17th June, 2019, they did not attend court though they had been served.
The deponent states that the appellant deposited in court a sum of Kshs. 402, 265/- being the decretal sum pursuant to a court order. He has annexed a copy of the deposit slip marked as exhibit “RK”
That the appeal was heard and determined and the same was allowed and the lower court suit dismissed. He has sought for the refund of that money to the Appellant/Applicant.
The court has considered the application together with the supporting affidavit. The Appellant states that it deposited the aforesaid sum in court as a condition for stay pending the hearing and determination of the appeal. I have perused the record of the proceedings and I can confirm that the appeal was heard and determined on the 3rd day of April, 2019. There is no evidence that the responded intends to challenge that judgment in any way and even if there was, the amount sought to be released was deposited as security pending the hearing and determination of the appeal filed herein which has been finalized. The applicant has annexed a deposit slip as evidence that the money was deposited in court
In the premises aforesaid, I see no reason why the decretal sum should not be released to the appellant. I allow the application dated the 6th day of June 2019 but with no orders as to costs.
Dated, Signed and Delivered at Nairobi this 19TH Day of JUNE, 2019.
.........................
L. NJUGUNA
JUDGE
In the Presence of
…………………………. For the Applicant
…………………………. For the Respondent