[2018] KEHC 7077 (KLR)
The court found that the respondent had not filed any application for review despite indicating his intention to do so eight months prior. The principle that litigation must come to an end was emphasized. Since the appeal had been allowed and there was no pending application for review, the security deposit was no...
Source-derived case information.
- Citation
- [2018] KEHC 7077 (KLR)
- Parties
- Appellant: Nampak Kenya Limited; Respondent: Paul Muruga Wachira
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 286 of 2010
- Procedural Posture
- Civil Appeal / Post Judgment Application for Release of Security Deposit
- Outcome
- Application allowed. Security deposit to be released to the appellant's advocate within 14 days. Costs of the application awarded to the appellant.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Security for Costs, Release of Funds, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nampak Kenya Limited
Appellant
Paul Muruga Wachira
Respondent
Procedural Posture
Civil Appeal / Post Judgment Application for Release of Security Deposit
Legal Issues
- 1 Whether the security sum deposited in court should be released to the appellant following the successful appeal.
- 2 Whether the respondent's intention to seek review justifies withholding the release of the security deposit.
Ratio Decidendi
The court found that the respondent had not filed any application for review despite indicating his intention to do so eight months prior. The principle that litigation must come to an end was emphasized. Since the appeal had been allowed and there was no pending application for review, the security deposit was no longer required. The application for release of the security was therefore merited and granted.
Court Disposition
Application allowed. Security deposit to be released to the appellant's advocate within 14 days. Costs of the application awarded to the appellant.
Orders
- The security sum of Kshs. 700,000 deposited in court for the appellant to be released to the appellant's advocate within 14 days from the date of this ruling.
- The appellant shall have the costs of the application.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 286 OF 2010
NAMPAK KENYA LIMITED...........................APPELLANT
VERSUS
PAUL MURUGA WACHIRA........................RESPONDENT
RULING
On 25th May 2017 Sergon J delivered a judgment wherein he allowed the appeal, dismissed the objection on jurisdiction and substituted it with an order striking out of the suit and awarded costs of the appeal and the suit to the appellant.
There is now an application before me dated 15th June, 2017 under order 51 Rule 1 of the Civil Procedure Rules and Sections 1A and 1B of the Civil Procedure Act, seeking an order that the security sum of Kshs. 700,000/= deposited in court for and on behalf of the appellant be released to his advocates. This order is based on the fact that the appeal was allowed and therefore no security is required any more.
There is a supporting affidavit sworn by the advocate for the appellant. The respondent filed a replying affidavit stating that he was aggrieved by the said judgment and has sufficient grounds for review of the same. Further, the release of the security is not ripe before exhausting his remedy of review. In any case no prejudice will be occasioned to the appellant if the release is held in abeyance.
The replying affidavit was filed on 25th July, 2017. As early as 26th July, 2017 the respondent indicated that he wished to file an application for review. Eight months down the line, no such application has been lodged. Litigation must come to an end.
The application for release of security is well merited. It is granted as prayed. The release of the funds deposited in court in the name of the advocate for the appellant on 7th August, 2013 shall be released to the said advocate within 14 days from the date of this ruling. In effect this application is allowed and the appellant shall have the costs of the application.
Orders accordingly.
Dated, signed and delivered at Nairobi this 20th Day of March, 2018.
A. MBOGHOLI MSAGHA
JUDGE