[2020] KEHC 4691 (KLR)
The court found that the appellants failed to prosecute their appeal within the 120 days ordered by the court in its ruling of 1st November, 2017. As a result, the appeal stood dismissed by operation of law. The decretal sum of Ksh 298,224 had been deposited as security pending the hearing and determination of the...
Source-derived case information.
- Citation
- [2020] KEHC 4691 (KLR)
- Parties
- Appellant: Someni Industries Limited; Appellant: Davies Munyi Guya; Respondent: Frank Japheth Njagi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 183 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion for Release of Decretal Sum After Dismissal of Appeal
- Outcome
- application allowed
- Legal Topics
- Stay of Execution, Dismissal for Want of Prosecution, Release of Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Someni Industries Limited
Appellant
Davies Munyi Guya
Appellant
Frank Japheth Njagi
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion for Release of Decretal Sum After Dismissal of Appeal
Legal Issues
- 1 Whether the respondent is entitled to the release of the decretal sum deposited in court after the appeal stood dismissed for want of prosecution.
- 2 Whether the appellants took any steps to prosecute the appeal within the time ordered by the court.
Ratio Decidendi
The court found that the appellants failed to prosecute their appeal within the 120 days ordered by the court in its ruling of 1st November, 2017. As a result, the appeal stood dismissed by operation of law. The decretal sum of Ksh 298,224 had been deposited as security pending the hearing and determination of the appeal. With the appeal no longer pending and the appellants having shown no interest in defending the application for release of the funds, the respondent was entitled to the release of the deposited sum. The court therefore allowed the application as prayed and awarded costs of both the application and the appeal to the respondent.
Court Disposition
application allowed
Orders
- The decretal sum of Ksh 298,224 deposited in court by the appellants on 11th August, 2008 is to be released to the respondent.
- Costs of both the application and the appeal are awarded to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NUMBER 183 OF 2008
SOMENI INDUSTRIES LIMITED...........................1st APPELLANT
DAVIES MUNYI GUYA............................................2nd APPELLANT
VERSUS
FRANK JAPHETH NJAGI.........................................RESPONDENT
RULING
This ruling relates to the Notice of Motion dated the 27th January, 2020 brought by the Respondent / Applicant under order 39 Rule (2), order 40 Rule (1) of the Civil Procedure Rules and Sections 1A, 3 and 3A of the Civil Procedure Act Cap 21 Laws of Kenya in which, the applicant has sought for the release of the decretal sum of Ksh 298, 224 deposited in Court by the Appellant, on the 11th August 2008.
The application is premised on the grounds set out on the body of the same and it’s supported by the annexed affidavit sworn by ISAAC OMEKE MIENCHA, on the 27th January, 2020.
In the said affidavit, it is deponed that the Appeal herein was filed on the 15th April, 2008 and thereafter, the Appellants filed an application seeking stay of execution pending the hearing and determination of the Appeal. That the stay of execution orders were issued subject to the respondent depositing the decretal sum of Ksh 298,224 in Court which amount was deposited on the 11Th August, 2008 vide receipt number 461781.
It is further deponed that, the Appellants never took steps to prosecute the appeal prompting the respondent to file an application dated 18th May, 2010 seeking to have the appeal dismissed for want of prosecution. That the court upon hearing the said application, granted the Appellants 120 days within which to prosecute the appeal failure to which the appeal would stand dismissed. That the Appellants never took steps to prosecute the appeal after the said ruling and as it stands now, there is no pending appeal.
The Respondent in this application did not file a response to the same and did not attend Court during the hearing and therefore, it preceeded exparte.
The Court has duly considered the application together with the affidavit in support.
From the record, the court is able to confirm that, vide a ruling delivered on the 1st November, 2017, the Appellants were ordered to prosecute the appeal within 120 days failing which it would stand dismissed. The record further shows that since then, the Appellants has not taken any other step in this appeal meaning that the same stood dismissed upon the expiry of the 120 days ordered by the court within which it ought to have been prosecuted.
The sum of Kshs. 298,224/= that the applicant has sought release of, was deposited as security pending the hearing and determination of the appeal. As noted, there is no pending appeal and the Appellants have not challenged the orders made on 1st November, 2017 in anyway. Further, the Appellants did not defend the application which implies that they have lost interest in the appeal.
In view of the foregoing, the court finds merit in the application and the same is hereby allowed as prayed. Costs of both the application and the Appeal are awarded to the Respondent.
It is so ordered.
Dated, signed and Delivered at Nairobi this 25th day of June, 2020.
........................
L.NJUGUNA
JUDGE
IN THE PRESENCE OF
………………………………………………….FOR THE 1ST APPELLANT
…………………………………………………....FOR THE 2nd APELLANT
…………………………………………………….FOR THE RESPONDENT