[2017] KEHC 1670 (KLR)
The court found that the appeal had been dismissed for want of prosecution and that no further application for review or appeal had been filed. The decretal sum was deposited as a condition for stay of execution pending the determination of the appeal. Since the appeal was dismissed and there was no challenge to...
Source-derived case information.
- Citation
- [2017] KEHC 1670 (KLR)
- Parties
- Appellant: Roy Parcel Services Limited; Respondent: Express Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 160 of 2000
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Release of Decretal Sum
- Outcome
- application allowed
- Judges
- LM Njuguna
- 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
Roy Parcel Services Limited
Appellant
Express Kenya Limited
Respondent
Procedural Posture
Civil Case / Ruling on Notice of Motion for Release of Decretal Sum
Legal Issues
- 1 Whether the decretal sum deposited in court should be released to the respondent following dismissal of the appeal.
- 2 Whether there is any pending application for review or appeal against the order dismissing the appeal.
Ratio Decidendi
The court found that the appeal had been dismissed for want of prosecution and that no further application for review or appeal had been filed. The decretal sum was deposited as a condition for stay of execution pending the determination of the appeal. Since the appeal was dismissed and there was no challenge to that dismissal, the respondent, as the successful party in the original suit, was entitled to the release of the deposited funds. The application for release of the decretal sum was therefore merited and allowed as prayed.
Court Disposition
application allowed
Orders
- The decretal sum deposited with the court on 8th November, 2000 vide bankers cheque number 398156 shall be released to Express Kenya Limited.
- Costs of the application are provided for.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 160 OF 2000
ROY PARCEL SERVICES LIMITED............... APPELLANT
VERSUS
EXPRESS KENYA LIMITED…………....... RESPONDENT
RULING
The application before the court for determination is the Notice of Motion dated the 22nd August, 2017 seeking orders that; the decretal sum deposited with the court on the 8th day of November, 2000 vide bankers cheque number 398156 be released to the applicant/Respondent express Kenya Limited and that the costs of the application be provided for.
It is premised on the grounds set out on the body of the same and it’s supported by the annexed affidavit of Clare Nyabuti sworn on the 22nd August, 2017.
It is deponed that on the 21st March 2000, Judgment was entered in the sum of ksh. 157,567/= together with costs and interest in RMcc No. 1761 of 1990. The Appellant lodged an Appeal on the 5th April, 2000 and obtained an order staying execution, on condition that the decretal sum plus costs is deposited in court.
That by a banker’s cheque number 398156 of ksh 183, 510/10 dated 8th November, 2000, the decretal sum was deposited in court pending the hearing and determination of the Appeal. The Appeal was dismissed on the 22nd March 2010 following an application to dismiss the Appeal for want of prosecution which was filed on the 23rd February 2004. Since then, there has not been an application for review of the order dismissing the Appeal and no Appeal has been preferred against the said order.
The Applicant has urged the court to order for the release of the funds.
The Application proceeded exparte as the Respondent did not file a response to the same or even attend court during the hearing.
The court has considered the application and the submissions by the Counsel for the Applicant. I have perused the court record and its true that the Appeal was dismissed on the 22nd March, 2010 for non attendance and since then no other action has been taken in the matter. The decretal sum sought to be released was deposited pending the hearing and determination of the Appeal.
In the premises, I find that the application dated 22nd August has merits and the same is allowed as prayed.
Dated, Signed and Delivered at Nairobi this 17th Day of November, 2017.
…………………………….
L. NJUGUNA
JUDGE
In the Presence of
…………………………. For the Appellant
…………………………. For the Respondent