[2011] KEHC 274 (KLR)
The court found that since the appeal had been determined, the security for costs was no longer required to be held by the court. The appellant had applied in writing for its release, and there was no opposition from the respondent, who had been duly served. The court exercised its discretion under the Civil...
Source-derived case information.
- Citation
- [2011] KEHC 274 (KLR)
- Parties
- Appellant: Peter Kinyanjui; Respondent: Virginia Waithera Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 50 of 2009
- Procedural Posture
- Civil Appeal / Post Judgment Application for Release of Security for Costs
- Outcome
- Application for release of security for costs allowed.
- Legal Topics
- Security for Costs, Release of Funds, Costs Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kinyanjui
Appellant
Virginia Waithera Mwangi
Respondent
Procedural Posture
Civil Appeal / Post Judgment Application for Release of Security for Costs
Legal Issues
- 1 Whether the appellant is entitled to the release of the security for costs deposited in court after the appeal was determined.
- 2 Whether there is any opposition to the application for release of security for costs.
Ratio Decidendi
The court found that since the appeal had been determined, the security for costs was no longer required to be held by the court. The appellant had applied in writing for its release, and there was no opposition from the respondent, who had been duly served. The court exercised its discretion under the Civil Procedure Rules to order the release of the deposited sum to the appellant. No order as to costs was made, reflecting the absence of contest and the equitable outcome of the proceedings.
Court Disposition
Application for release of security for costs allowed.
Orders
- The sum of Ksh. 20,000 deposited as security for costs to be released to the appellant.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 50 OF 2009
PETER KINYANJUI ……………………………………….………… APPELLANT
VERSUS
VIRGINIA WAITHERA MWANGI …………….....………..……… RESPONDENT
(Being an appeal from the Judgment of B.A Owino (Mrs) Resident Magistrate in Thika Magistrate’s Court on 26th January 2009 vide CMCCC No. 68 of 1993)
R U L I N G
Application to Release Security of Costs
Deposited in Court
I.BACKGROUND
1. The applicant herein filed an appeal against the respondent, on being dissatisfied with the decision of the subordinate court case.
2. The subject of the dispute between the parties was moneys lent and not paid. Judgment was entered in favour of the respondent defendant, on counter claim against the plaintiff.
3. On appeal, the High Court on 21st April 2009 (Okwengu J) ordered that security of cost of Ksh. 20,000/= be deposited to court. The appellant complied.
4. On the appeal being heard and finalized by Sitati J on
17th February 2011, the Hon. Judge dismissed the appeal as having no merits. The counter claim was also dismissed with costs to the appellant. An order as to costs was otherwise to be borne by both parties.
5. The appellant applies to have the funds of security of costs released to him.
6. The application under Order 51 Civil Procedure Rules was read with Section 3A with 42 r 6 Civil Procedure Rules on the issue of costs is to be applied for in writing. This was done in notice of motion
19th September 2011.
7. The appellant notified court that there was no opposition by the respondents whose advocate was duly served.
8. This court hereby orders that there be the release of sums as ordered deposited by court of Ksh. 20,000/- to the applicant appellant.
9. No orders as to costs.
DATED THIS 3RD DAY OF OCTOBER 2011 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
i)Peter Kinyanjui Appellant in person
ii)Advocate for respondent absent