[2015] KEHC 5222 (KLR)
The court found that although the appeal had been determined and the decretal sum paid, the Plaintiff had a pending bill of costs yet to be taxed. The Plaintiff's concern that the Defendants' whereabouts were unknown and that recovery of costs could be jeopardized if the funds were released was not controverted by...
Source-derived case information.
- Citation
- [2015] KEHC 5222 (KLR)
- Parties
- Plaintiff: Thomas Martin Kibisu; Defendant: James Mukolo Elisha; Defendant: East Africa Road Services Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2859 of 1990
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion for Release of Security Deposit
- Outcome
- conditional adjournment of application; funds to remain in account pending taxation of costs
- Judges
- JK Sergon
- Legal Topics
- Security for Appeal, Stay of Execution, Release of Funds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Martin Kibisu
Plaintiff
James Mukolo Elisha
Defendant
East Africa Road Services Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Notice of Motion for Release of Security Deposit
Legal Issues
- 1 Whether the sum deposited as security for appeal should be released to the Defendants' advocates after conclusion of the appeal.
- 2 Whether the pending taxation of the bill of costs justifies retention of the deposited sum until costs are determined.
Ratio Decidendi
The court found that although the appeal had been determined and the decretal sum paid, the Plaintiff had a pending bill of costs yet to be taxed. The Plaintiff's concern that the Defendants' whereabouts were unknown and that recovery of costs could be jeopardized if the funds were released was not controverted by the Defendants. The court held that it was prudent to retain the security deposit in the joint account until the issue of costs was resolved. However, to prevent undue delay, the Plaintiff was directed to expedite taxation proceedings within 90 days, failing which the Defendants' application for release of the funds would be automatically allowed. This approach balanced the...
Court Disposition
conditional adjournment of application; funds to remain in account pending taxation of costs
Orders
- The sum of KShs. 195,714 and accrued interest shall remain in the joint account until the bill of costs is taxed.
- The Plaintiff shall expedite taxation proceedings within 90 days from the date of this ruling.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 2859 OF 1990
THOMAS MARTIN KIBISU......................................................... .PLAINTIFF
VERSUS
1. JAMES MUKOLO ELISHA
2. EAST AFRICA ROAD SERVICES LTD.............................DEFENDANTS
RULING
The Defendants have filed the notice of motion dated 30th October, 2014 seeking for the following orders:-
That this court orders that the sum of KShs. 195,714/= deposited with Eco Bank (formerly known as EABS Bank Ltd) in account number 01-50102238 and all accrued interest be released to C.W. Githae & Company Advocates.
It was contended that the said sum had been deposited as security for appeal in the joint names of the Defendants' then advocates, Daly and Figgis Advocates and the Plaintiff's advocates. That the appeal was concluded by the judgment of14th February, 2014. That the Plaintiff's advocates were paid the decretal sum plus interest of KShs. 145,359. 86/= to which receipt was acknowledged but the said advocates have declined to consent to the release of the funds deposited in the joint interest earning account.
The application is opposed by the Plaintiff who filed the replying affidavit of Gacheru Ng'ang'a. He admitted that the decretal sum has been paid to the Plaintiff's advocates but contend that there is a bill of costs pending taxation before the court. He stated that the whereabouts of the Defendants are not known and that in the event the amount is released, recovering costs shall be difficult.
I have read and considered this application. It is not in dispute that the said sum was deposited in the joint interest earning account. The aforesaid sum was deposited as a condition for stay of execution pending the hearing and determination of the appeal. The appeal has been heard and determined. However, as has been stated by the Plaintiff, the bill of costs has not been taxed and the allegation that the Defendants cannot be traced has not been controverted. Considering the aforesaid issues, it is safer to have the money remain in the account. In my view no loss shall be occasioned in having the money remain in the bank account until the issue of costs is tackled. The Plaintiff should expedite the hearing and disposal of taxation proceedings within a period of 90 days failure to which the orders sought shall stand automatically allowed. Costs shall be in the cause.
Dated, Signed and Delivered in open court this 24th day of April, 2015.
J. K. SERGON
JUDGE
In the presence of:
........................................... for the Plaintiff
........................................... for the Defendants