[2018] KEHC 976 (KLR)
The court found that the deposit of Kshs. 7,882,793.00 was made solely as a condition for stay of execution pending appeal. Both parties acknowledged that the appeal had been determined and the appellate court did not order continued detention of the deposit. The court held that the purpose for which the deposit was...
Source-derived case information.
- Citation
- [2018] KEHC 976 (KLR)
- Parties
- Plaintiff: Oriental Construction Company Limited; Defendant: Rift Valley Services Water Board
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 161 of 2012
- Procedural Posture
- Civil Case / Ruling on Application for Release of Deposit
- Outcome
- application allowed
- Judges
- RB Ngetich
- Legal Topics
- Stay of Execution, Release of Security, Appeal Procedure, Deposit in Joint Account
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Oriental Construction Company Limited
Plaintiff
Rift Valley Services Water Board
Defendant
Procedural Posture
Civil Case / Ruling on Application for Release of Deposit
Legal Issues
- 1 Whether the sum of Kshs. 7,882,793.00 deposited as a condition for stay of execution should be released to the defendant's advocates after determination of the appeal.
- 2 Whether there is justification for continued retention of the deposit after the appeal has been determined.
Ratio Decidendi
The court found that the deposit of Kshs. 7,882,793.00 was made solely as a condition for stay of execution pending appeal. Both parties acknowledged that the appeal had been determined and the appellate court did not order continued detention of the deposit. The court held that the purpose for which the deposit was made had been fulfilled, and there was no legal justification for further retention of the funds. The plaintiff's argument for continued retention was rejected as no further application had been made for the deposit to be held pending determination of the substantive claim. Accordingly, the court ordered the release of the deposit and accrued interest to the defendant's...
Court Disposition
application allowed
Orders
- Kshs. 7,882,793.00 plus interest in Account No. 015255XXXXXXXX in the name Odhiambo and Odhiambo & Wanjama & Company Advocates, Standard Chartered Bank Nakuru Branch be released to the defendant's advocates.
- Costs in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION-MILIMANI
CIVIL CASE NO. 161 OF 2018
ORIENTAL CONSTRUCTION COMPANY LIMITED..........PLAINTIFF/APPL
VERSUS
RIFT VALLEY SERVICES WATER BOARD........................DEFENDANT/RESP
R U L I N G
This is a ruling on the Appellants application dated 9th May 2018. It seeks release of Kshs. 7,882,793. 00 which was deposited in the joint interest earning account No. 015255XXXXXXXX in the name Odhiambo and Odhiambo Advocates & Wanjama & Company Advocates, Standard Chartered Bank Nakuru Branch.
Grounds on the face of the application is that the Defendant being dissatisfied with ruling delivered on 12th July 2012 filed Notice of Appeal and to prevent execution filed application dated 26th August 2013 for stay pending appeal.
The Court granted stay of execution on condition that Kshs. 7,882,793. 00 was deposited in Court or in a joint interest earning account. Parties opted to deposit in a joint interest earning account in the names of Advocates herein.
The Defendant aver that Civil Appeal No.268 of 2012 Rift Valley Water Services Board versus Oriental Construction Company Limited was heard on 19th January 2017 and ruling delivered on 31st March 2017.
The Defendant’s contention is that the amount deposited and interest should be released to the Defendants Advocates as it has already served as condition for stay as ordered by Court on 28th August 2013.
In response, the Plaintiffs Advocate filed Replying Affidavit sworn on 20th June 2018.
He admitted that the said amount was deposited in a joint interest earning account as condition for stay of execution. He confirmed that ruling on appeal was delivered on 21st March 2018 with result that this suit shall be heard and determined by this Court.
Counsel for the Plaintiff averred that in his view the deposit should be retained, as the claim against the Defendant has not been determined; that the retention of the money reduces burden on Defendant and gives confidence to the Plaintiff in the event judgment is entered for the Plaintiff.
I have considered averments herein. There is no dispute that the amount herein was deposit as a condition for stay of execution pending appeal. Counsel for the plaintiff has admitted that the appeal has been determined.
The court of appeal in its determination did not make an order for continued detention of the deposit. The purpose for which deposit done has been spent. No further application has been made by plaintiff from deposit of money pending determination of claim against the Defendant.
There is therefore no justification for further retention of the money.
FINAL ORDER
1. Kshs. 7,882,793. 00 plus interest in Ac. No 015255XXXXXXXX in the name Odhiambo and Odhiambo & Wanjama & Company Advocates, Standard Chartered Bank Nakuru Branch be released to the Defendants Advocates.
2. Costs in the cause.
Ruling Delivered, Dated and Signed at Nairobi this 13th day of December, 2018
.....................................
RACHEL NGETICH
JUDGE
IN THE PRESENCE OF
Margaret: Court Assistant
No Appearance by Parties: