[2023] KEHC 18135 (KLR)
Once an appeal has been heard and determined by the court, any application seeking dismissal for want of prosecution is rendered moot and cannot be entertained. However, where the appeal has been dismissed and the court had previously ordered the decretal sum to be deposited in a joint account as security, the...
Source-derived case information.
- Citation
- [2023] KEHC 18135 (KLR)
- Parties
- Appellant: Erick Nyambane Sagany; Appellant: John Kebaso Masieka; Respondent: Elizabeth Chepkemoi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E009 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Post Judgment Application
- Outcome
- Application partly allowed; prayer for dismissal denied as moot, prayer for release of decretal sum granted.
- Judges
- SM Mohochi
- Legal Topics
- Dismissal for Want of Prosecution, Release of Decretal Sum, Post Judgment Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Nyambane Sagany
Appellant
John Kebaso Masieka
Appellant
Elizabeth Chepkemoi
Respondent
Procedural Posture
Civil Appeal / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the court can entertain an application for dismissal of an appeal after the appeal has already been determined.
- 2 Whether the respondent is entitled to the release of the decretal sum deposited in the joint account following the dismissal of the appeal.
Ratio Decidendi
Once an appeal has been heard and determined by the court, any application seeking dismissal for want of prosecution is rendered moot and cannot be entertained. However, where the appeal has been dismissed and the court had previously ordered the decretal sum to be deposited in a joint account as security, the successful party is entitled to the release of those funds. The court, therefore, found that the prayer for dismissal was untenable but allowed the prayer for release of the decretal sum to the respondent's advocates.
Court Disposition
Application partly allowed; prayer for dismissal denied as moot, prayer for release of decretal sum granted.
Orders
- The prayer for dismissal of the appeal for want of prosecution is denied as the appeal has already been determined.
- The entire decretal amount of Kshs 398,730 plus interest deposited in the joint account at Equity Bank is to be released forthwith to Omanwa Mamwacha & Co Advocates.
Full Case Text
Judgment text and source record
28 paragraphs
Sagany & another v Chepkemoi (Civil Appeal E009 of 2021) [2023] KEHC 18135 (KLR) (26 May 2023) (Ruling)
Neutral citation: [2023] KEHC 18135 (KLR)
Republic of Kenya
In the High Court at Nakuru
Civil Appeal E009 of 2021
SM Mohochi, J
May 26, 2023
Between
Erick Nyambane Sagany
1st Appellant
John Kebaso Masieka
2nd Appellant
and
Elizabeth Chepkemoi
Respondent
Ruling
Introduction 1. The Appeal was listed for hearing on the January 24, 2023 under the Service Week Initiative and was placed before Hon Justice Kizito Magare, the Appellants through Ms Mwangi argued the Appeal and the Court dismissed the Appeal for lack of merit with Costs of Kshs 100,000/- to the Respondents.
2. The Application before the Court is the Appellant’s Notice of Motion dated January 18, 2023 brought under Sections 3A, of the Civil Procedure Act, Orders 35 (1), 42 (11) and 51(1) of the Civil Procedures Rules and all enabling provisions of the Law.
3. The application seeks two (2) substantive prayers namely;i.The Court be pleased to dismiss the Appeal for want of prosecution; andii.The Court be pleased to order, the forthwith release of, the entire decretal amount of Kshs 398,730/- plus interest, deposited in the Joint Account No xxxx, Equity Bank, in the Name Omanwa Mamwacha &co Advocates, and Kimondo Gachoka & Co Advocates to Omanwa Mamwacha &co Advocates.
4. The Application is grounded on the following six (6) grounds, that: -i.The Appeal was filed on the February 16, 2021;ii.The Court on the February 3, 2022 ruled and ordered that the decretal sum be deposited in a joint interest earning account and that the Appellant files his record of Appeal within sixty (60) days;iii.The Appellant have failed to take up any steps to have the Appeal heard and determined;iv.The Appellants are not interested in prosecuting the Appeal;v.The Respondent/Applicant has suffered prejudice; andvi.Justice delayed is justice denied.
5. The Appeal was listed for hearing on the January 24, 2023 under the Service Week Initiative and was placed before Hon Justice Kizito Magare, the Appellants through Ms Mwangi argued the Appeal and the Court dismissed the Appeal for lack of merit with Costs to the Respondents.
6. The instant Application is opposed by an undated replying Affidavit by Lawrence Mwangi Advocate filed on the March 21, 2023.
7. Inter parte directions were issued on March 21, 2023 and March 28, 2023 where parties were directed to file written submissions within 15 days. As at the time of writing the ruling, no written submissions had been filed by the Parties.
Analysis and Determination 8. I have carefully considered the Application, and the replying Affidavit thereto. The only issue for determination is whether the Court can allow the Application long after the Appeal is determined.
9. The Appeal was determined on the January 24, 2023 and a judgment thereof delivered.
10. In view of the judgment of this Appeal, a prayer for dismissal is untenable while the second prayer is tenable and allowed in this instance.
11. From the foregoing an Order is hereby issued, for the forthwith release of, the entire decretal amount of Kshs 398,730/- plus interest, deposited in the Joint Account No xxxx, Equity Bank, in the Name Omanwa Mamwacha & Co Advocates, and Kimondo Gachoka & Co Advocates to Omanwa Mamwacha &co Advocates.
DATED, & DELIVERED AT NAKURU, THIS 26TH DAY OF MAY, 2023MOHOCHI S.MJUDGE