[2014] KEHC 8035 (KLR)
The court found that since the appeal had been dismissed for want of prosecution and there was no pending application or appeal challenging that dismissal, there was no reason to withhold the decretal sum from the respondent. The deposited funds, being security for the decree, should be released to the respondent as...
Source-derived case information.
- Citation
- [2014] KEHC 8035 (KLR)
- Parties
- Appellant: Hon Nick Salat; Respondent: Simon Ledama Kimunai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 722 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application for Release of Deposited Funds After Dismissal of Appeal
- Outcome
- Application for release of deposited funds granted.
- Judges
- DW Mbuteti
- Legal Topics
- Stay of Execution, Release of Decretal Sum, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon Nick Salat
Appellant
Simon Ledama Kimunai
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Release of Deposited Funds After Dismissal of Appeal
Legal Issues
- 1 Whether the respondent is entitled to the release of the decretal sum deposited in a joint account after dismissal of the appeal for want of prosecution.
Ratio Decidendi
The court found that since the appeal had been dismissed for want of prosecution and there was no pending application or appeal challenging that dismissal, there was no reason to withhold the decretal sum from the respondent. The deposited funds, being security for the decree, should be released to the respondent as the successful party. The application for release of the funds was therefore granted.
Court Disposition
Application for release of deposited funds granted.
Orders
- The funds deposited in account No 011300306924 at Co-operative Bank of Kenya to be released to the respondent through his advocates.
- No order as to costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL APPEAL NO 722 OF 2005
HON NICK SALAT……………………...……………………….…APPELLANT
VERSUS
SIMON LEDAMA KIMUNAI ………………………....…………RESPONDENT
R U L I N G
1. On 5th October 2005 the Appellant herein was granted stay of execution of decree pending disposal of the appeal upon the condition that he deposits the balance of the decretal sum (KShs 250,025/00) in an interest earning account in the joint names of the parties’ advocates. Such bank account, No 011300306924 was opened with the Co-operative Bank of Kenyaand the balance of the decretal sum deposited into it.
2. On 4th November 2011 this appeal was dismissed for want of prosecution. There is no application or appeal pending in respect of that dismissal.
3. The Respondent has now applied by notice of motion dated 6th May 2014 for release of the deposited funds to him through his advocates. The application is not opposed, obviously for good reason. The appeal having been disposed of there is no reason why the Respondent should not have access to the remaining fruits of his decree.
4. I will grant the application as prayed, but with no order to costs. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 2ND DAY OF JULY 2014
H.P.G. WAWERU
JUDGE
DELIVERED THIS 4TH DAY OF JULY 2014