[2008] KEHC 1374 (KLR)
The court found that although the application for release of funds was initially brought under the wrong provisions of the law, the applicant was granted leave to amend the application. The funds in question were deposited as security for costs pending appeal. Since the appeal had been heard and determined and the...
Source-derived case information.
- Citation
- [2008] KEHC 1374 (KLR)
- Parties
- Plaintiff: Nguruman Limited; Defendant: Shompole Group Ranch; Defendant: Moshila Ole Matayian; Defendant: Nkoitiko Ole Napindiya; Defendant: Turana Ole Kumari
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 145 of 2001
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection to Application for Release of Funds
- Outcome
- preliminary objection dismissed; applicant at liberty to prosecute application for release of funds
- Judges
- JL Osiemo
- Legal Topics
- Security for Costs, Preliminary Objection, Release of Funds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nguruman Limited
Plaintiff
Shompole Group Ranch
Defendant
Moshila Ole Matayian
Defendant
Nkoitiko Ole Napindiya
Defendant
Turana Ole Kumari
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection to Application for Release of Funds
Legal Issues
- 1 Whether the preliminary objection to the application for release of funds is valid.
- 2 Whether the application for release of funds is incompetent for failure to cite the correct legal provisions.
- 3 Whether the funds deposited as security for costs should be released after the appeal was determined and the suit reinstated.
Ratio Decidendi
The court found that although the application for release of funds was initially brought under the wrong provisions of the law, the applicant was granted leave to amend the application. The funds in question were deposited as security for costs pending appeal. Since the appeal had been heard and determined and the suit reinstated by the Court of Appeal, it was fair and just to allow the applicant to prosecute the application for release of the funds. The preliminary objection raised by the defendants was therefore rejected, and the applicant was granted liberty to proceed with the substantive application for release of the funds.
Court Disposition
preliminary objection dismissed; applicant at liberty to prosecute application for release of funds
Orders
- The defendant's preliminary objection is rejected.
- The applicant is at liberty to prosecute his application dated 3rd June 2008.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 145 of 2001
NGURUMAN LIMITED………………...……………………………PLAINTIFF
VERSUS
SHOMPOLE GROUP RANCH….…………………………1ST DEFENDANT
MOSHILA OLE MATAYIAN……..………………………..2ND DEFENDANT
NKOITIKO OLE NAPINDIYA….…..……………………..3RD DEFENDANT
TURANA OLE KUMARI…….…………………………….4TH DEFENDANT
R U L I N G
On the 3rd June 2008 M/s A.F. Gross Advocate on behalf of the Defendants brought an application by way of a Chamber Summons seeking order to have the funds lodged by Nguruman Limited on 25th May 2004 in a joint interest earning Account in the names of AF Gross Advocate and K.S. Osmond Advocate at Chase Bank (K) Limited being Account Number 8104154006 pursuant to the order made by the Honourable Mr. Justice Ransley on 13th May 2004 in the instant suit be forthwith and unconditionally released to the Plaintiff/Applicant.
The application is based on the grounds that the said sum was for taxed costs after the suit had been struck out which suit was reinstated on appeal to the Court of Appeal. When this application when this application came up for hearing. Mr. Osmond for the 1st Defendant raised a preliminary objection on the ground that the order by Ransley J which directed that the said funds be deposited in a joint interest earning Account which was not dated has not been extracted and did not specify the time it was to be in force and further that this application is incompetent in that it does not state the provisions of the law under which it is brought.
Mr. Njuguna Counsel for the Applicant in reply to the preliminary objection conceded that indeed the application was brought under wrong provisions of the law and applied orally for leave to amend the same which leave was granted.
He then went on to submit that the deposit was meant for security for costs pending appeal and the appeal having been heard and determined and the suit having been reinstated by the order of the Court of Appeal the funds ought to be released and urged the court to dismiss the preliminary objection and allow him to proceed with his application.
The said funds having been deposited as security for costs pending appeal and the appeal having been heard and determined and the suit having been reinstated it is only fair and just that the Applicant be allowed to prosecute his application for the release of the said fund.
Accordingly the Defendant’s preliminary objection is rejected and I order that the Applicant is at liberty to prosecute his application dated 3rd June 2008.
Dated and delivered at Nairobi this 24th day of September 2008.
J. L. A. OSIEMO
JUDGE