[2020] KEHC 3688 (KLR)
The court found that the KShs.350,000 was deposited as security for stay of execution pending the determination of the appeal, which has now been concluded in favour of the applicant. There is no order from the Court of Appeal staying execution of the judgment, and the mere pendency of an intended appeal does not...
Source-derived case information.
- Citation
- [2020] KEHC 3688 (KLR)
- Parties
- Appellant: Sudhir J. Trivedy; Respondent: Kisima Drilling (EA) Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 673 of 2012
- Procedural Posture
- Civil Appeal / Post Judgment Application for Release of Security Deposit
- Outcome
- Application allowed.
- Judges
- CW Githua
- Legal Topics
- Stay of Execution, Security for Judgment, Release of Funds, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sudhir J. Trivedy
Appellant
Kisima Drilling (EA) Limited
Respondent
Procedural Posture
Civil Appeal / Post Judgment Application for Release of Security Deposit
Legal Issues
- 1 Whether the KShs.350,000 deposited as security for stay of execution should be released to the appellant after the appeal was determined in his favour.
- 2 Whether the pendency of an intended appeal to the Court of Appeal, without a stay order, justifies continued retention of the security deposit.
Ratio Decidendi
The court found that the KShs.350,000 was deposited as security for stay of execution pending the determination of the appeal, which has now been concluded in favour of the applicant. There is no order from the Court of Appeal staying execution of the judgment, and the mere pendency of an intended appeal does not justify continued retention of the security deposit. The respondent failed to demonstrate any risk of irreparable loss or that the applicant would be unable to refund the amount if the appeal succeeded. Therefore, the purpose for which the security was deposited is now spent, and the applicant is entitled to its release together with accrued interest.
Court Disposition
Application allowed.
Orders
- The applicant's Notice of Motion dated 21st January 2020 is allowed in terms of prayer 1.
- KShs.350,000 together with all accrued interest deposited in the joint names of the parties' advocates shall be released to the appellant's advocates.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 673 OF 2012
SUDHIR J. TRIVEDY................................APPELLANT
VERSUS
KISIMA DRILLING (EA) LIMITED......RESPONDENT
RULING
1. The application for determination before me is the Notice of Motion dated 21st January 2020 in which the applicant who was the appellant in this appeal seeks that KShs.350,000 deposited with the Bank of India in the joint names of counsel for the parties namely Wekesa & Simiyu Advocates and Mbugua & Mbugua Advocates as a condition for filing the appeal be released together with all the accrued interest to the appellant’s advocates as the appeal has already been determined in the applicant’s favour.
2. The application is opposed through grounds of opposition filed by the respondent on 24th June 2020. While admitting deposit by the appellant of the aforesaid amount in the parties advocates’ joint account described in prayer 1 and that the appeal had been determined in the applicant’s favour, the respondent opposed the motion on grounds that it had filed an appeal to the court of appeal against this court’s decision; that the appeal was still pending hearing and that consequently, the money should continue being held in the joint interest account until the appeal was determined.
3. The application was argued before me on 30th June 2020 by learned counsel Mr. Mbugua who represented the applicant and learned counsel Mr. Wesonga who appeared for the respondent. In his submissions, Mr. Mbugua clarified that the money was deposited as a condition for stay of execution pending determination of the appeal not as a condition for filing the appeal as stated in the application. He asserted that since the appeal has been concluded, there was no reason to retain the money in the bank and the same should be released to the applicant. He pointed out that no appeal can operate as a stay of execution and that in any event, the respondent had not demonstrated any interest in pursuing the appeal as more than a year later, no memorandum of appeal had been filed.
4. In his riposte, Mr. Wesonga argued that the application should be dismissed as releasing the money as proposed would defeat the purpose of the intended appeal; that the money should continue being held in the bank account because if the appeal failed, the applicant would have the money together with accrued interest. Counsel further submitted that the delay in filing the record of appeal in the Court of Appeal has been occasioned by this court’s failure to supply the respondent with certified copies of the proceedings and judgment.
5. Having considered the parties’ rival submissions, I find that it is not disputed that the money in question was deposited by the applicant as a condition for stay of execution pending disposal of the appeal. It is also not in dispute that the appeal has been determined by this court in favour of the applicant. The respondent has also not contested the applicant’s claim that there is no order issued by the Court of Appeal staying execution of this court’s judgment delivered on 1st July 2019.
6. Given the above undisputed facts and considering that it is trite law that the pendency of an appeal cannot by itself operate as a stay of the judgment or orders subject of the appeal, I find no good reason to justify the continued retention of the money in question in the bank since the purpose for which the money was deposited is now spent. I find no merit in the respondent’s submission that the release of the money to the applicant will render its intended appeal nugatory. It has not been suggested or claimed that the applicant is a man of straw and he will be incapable of refunding KShs.350,000 in the event that the respondent’s intended appeal is prosecuted with a positive outcome.
7. In the result, I am satisfied that the applicant’s Notice of Motion dated 21st January 2020 is merited and it is hereby allowed in terms of prayer 1.
8. Though as a general rule costs follow the event, given the nature of the orders sought in the motion, I will not make any order as to costs.
It is so ordered.
DATED, SIGNED andDELIVERED at NAIROBIthis 30th day of July 2020.
C. W. GITHUA
JUDGE
In the presence of:
Mr. Mbugua for the applicant
Mr. Wesonga for the respondent
Ms Mwinzi: Court Assistant