[2016] KEHC 8022 (KLR)
The court found that the appeal had been allowed in favour of the applicants and the respondent's claim dismissed. There was no opposition to the application for release of the security deposit, and no legal reason was presented to withhold the funds. Therefore, the applicants were entitled to the release of the...
Source-derived case information.
- Citation
- [2016] KEHC 8022 (KLR)
- Parties
- Applicant: Mwanaisha Wariga; Applicant: Evanson Kamau Waithiki; Respondent: Philip Musungu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 633 B of 2008
- Procedural Posture
- Civil Appeal / Ruling on Post Appeal Application for Release of Security Deposit
- Outcome
- application allowed
- Legal Topics
- Security for Judgment, Release of Deposit, Appeal Outcome Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwanaisha Wariga
Applicant
Evanson Kamau Waithiki
Applicant
Philip Musungu
Respondent
Procedural Posture
Civil Appeal / Ruling on Post Appeal Application for Release of Security Deposit
Legal Issues
- 1 Whether the applicants are entitled to the release of the Kshs.490,000 deposited as security following the successful appeal.
- 2 Whether there is any legal impediment to releasing the deposited sum to the applicants.
Ratio Decidendi
The court found that the appeal had been allowed in favour of the applicants and the respondent's claim dismissed. There was no opposition to the application for release of the security deposit, and no legal reason was presented to withhold the funds. Therefore, the applicants were entitled to the release of the Kshs.490,000 deposited as security in the joint names of the parties' counsels.
Court Disposition
application allowed
Orders
- The application dated 28th August, 2013 is allowed as prayed.
- The amount of Kshs.490,000 deposited as security in this case shall be released to the applicants.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL DIVISION
CIVIL APPEAL CASE NO. 633 B OF 2008
MWANAISHA WARIGA……………..……………………….1ST APPLICANT
EVANSON KAMAU WAITHIKI……....………….…………..2ND APPLICANT
VERSUS
PHILIP MUSUNGU ……………..……………………….…... RESPONDENT
RULING
1. The application dated 28th August,2013 seeks orders that the amount of Kshs.490,000/= deposited as security in this case be released to the appellants.
2. The application is supported by the affidavit sworn by the applicants on 27th August, 2013. It is stated by the applicants that they deposited the decretal sum in court pending the hearing of the appeal. That the appeal has been determined in the appellants favour, hence this application.
3. The application is opposed. No papers have been filed in opposition to the application. During the hearing of the application, there was no attendance for the respondent though service had been effected. The application proceeded ex parte.
4. I have considered the application. I have also perused the file. The appeal was allowed and the Respondent’s claim was dismissed as per the judgment dated 19th November, 2012. Consequently, there is no reason why the kshs.490,000/= deposited in the joint names of the counsels for the parties herein should not be released to the applicants.
5. Although the counsel holding brief for Mr. Owoga for the applicants referred to another application dated 11th February, 2013, I have found to such application on the record.
6. With the foregoing the application dated 28th August, 2013 is allowed as prayed.
Dated, signed and delivered at Nairobi this 21st day of Sept , 2016.
B. THURANIRA JADEN,
JUDGE