[2009] KEHC 3740 (KLR)
The court found that the Kshs.65,000 was deposited as a condition for a temporary stay of execution pending the hearing of an application. Since the application was granted, the warrants set aside, and the order has not been challenged, there is no justification for the continued retention of the deposit. The sums...
Source-derived case information.
- Citation
- [2009] KEHC 3740 (KLR)
- Parties
- Appellant: Stephen Kiiru Mutuva; Respondent: Jane Waithera Mungai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 253 of 2002
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion for Release of Deposited Funds
- Outcome
- application allowed
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Security for Costs, Release of Deposit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Kiiru Mutuva
Appellant
Jane Waithera Mungai
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion for Release of Deposited Funds
Legal Issues
- 1 Whether the sum of Kshs.65,000 deposited as security should be released to the appellant.
- 2 Whether there is any justification for the continued retention of the deposit after the stay of execution order expired.
Ratio Decidendi
The court found that the Kshs.65,000 was deposited as a condition for a temporary stay of execution pending the hearing of an application. Since the application was granted, the warrants set aside, and the order has not been challenged, there is no justification for the continued retention of the deposit. The sums mentioned by the respondent were not the subject of the appeal or the application that led to the deposit. Therefore, the deposit should be released to the appellant.
Court Disposition
application allowed
Orders
- The sum of Kshs.65,000 deposited in court by the appellant on 7th December, 2007, shall be released to the appellant.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
(MILIMANI LAW COURTS)
CIVIL APPEAL 253 OF 2002
STEPHEN KIIRU MUTUVA………..…………….APPELLANT
VERSUS
JANE WAITHERA MUNGAI………..…………RESPONDENT
R U L I N G
1. By a notice of motion dated 17th September, 2008, Stephen Kiiru Mutuva, the appellant herein seeks to have the sum of Kshs.65,000/=, deposited in court by the appellant on 7th December, 2007, released to the appellant. The appellant explains that he has fully complied with the judgment of the court subject of his appeal. He further contends that there being no monetary decree there is no justification for the security as the order for stay of execution has since expired.
2. Jane Waithera Mungai, the respondent herein, objects to the application through a replying affidavit sworn by her advocate Richard Ng’ang’a Kang’iro. The counsel explains that there is a decree for Kshs.70,715/= and a certificate for costs for Kshs.34,745/=.
3. I have considered the application. The order for deposit of Kshs.65,000/= was a condition for the granting of a temporary order of stay of execution pending the hearing of the application dated 20th November, 2007. Subsequently, that application was granted and an order issued on 20th February, 2008 for the warrants issued in Thika CMCC No.1086 of 2001 to be set aside. To date, that order has not been challenged. In the circumstances, there is no justification for the deposit of Kshs.65,000/= remaining in court. The appellant has talked about a decree for Kshs.70,715/= and 34,745/=. However, that is not the subject of this appeal nor was it the subject of the application resulting in the deposit of the sum of Kshs.65,000/=.
4. For the above reasons, I allow the application and order that the sum of Kshs.65,000/= be released to the appellant.
Those shall be the orders of this court.
Dated and delivered this 13th day of May, 2009
H. M. OKWENGU
JUDGE
In the presence of: -
Gitonga H/B for Ngugi for the appellant
Advocate for the respondent absent
Erick – Court clerk