[2013] KEHC 6652 (KLR)
The court held that the respondent's application for release of the decretal sum was premature because the appeal was still pending before the court. The failure by the appellant to list the appeal for directions did not result in abatement or lapse of the appeal, as the Civil Procedure Rules do not provide for such...
Source-derived case information.
- Citation
- [2013] KEHC 6652 (KLR)
- Parties
- Appellant: Tri-Clover Industries (K) Ltd; Respondent: Patrick Kitheka
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 589 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application for Release of Decretal Sum Pending Appeal
- Outcome
- application dismissed
- Judges
- DW Mbuteti
- Legal Topics
- Stay of Execution, Appeal Procedure, Release of Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tri-Clover Industries (K) Ltd
Appellant
Patrick Kitheka
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Release of Decretal Sum Pending Appeal
Legal Issues
- 1 Whether the respondent is entitled to the release of the decretal sum deposited in court pending appeal.
- 2 Whether failure by the appellant to list the appeal for directions amounts to abatement or lapse of the appeal.
Ratio Decidendi
The court held that the respondent's application for release of the decretal sum was premature because the appeal was still pending before the court. The failure by the appellant to list the appeal for directions did not result in abatement or lapse of the appeal, as the Civil Procedure Rules do not provide for such a consequence. The proper remedy for delay in prosecuting an appeal is an application for dismissal for want of prosecution, which had not been made. Therefore, the respondent was not entitled to the release of the decretal sum at this stage.
Court Disposition
application dismissed
Orders
- The respondent's application for release of the decretal sum is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL APPEAL NO. 589 OF 2012
TRI-CLOVER INDUSTRIES (K) LTD……..…..APPELLANT
VERSUS
PATRICK KITHEKA ..................................RESPONDENT
R U L I N G
1. The Respondent herein has a decree for money against the Appellant. The Appellant appealed against that decree. The lower court apparently granted a stay of execution pending appeal upon the condition that the Appellant deposits the decretal sum in court. That was done.
2. The Respondent has now applied bynotice of motion dated 22nd May 2013for an order that the said decretal sum deposited in court on 26th November 2012 be released to him through his counsels on record. The application is opposed by the Appellant.
3. I have read the supporting and opposing affidavits. I have also considered the submissions of the learned counsels appearing.
4. The ground for the Respondent’s application is that the Appellant has failed to cause the appeal to be listed before a Judge for directions, and that therefore there has been delay in prosecuting the appeal. In the Respondent’s view there is no longer any appeal properly before the Court.
5. That view of the Respondent is, with respect, erroneous. Order 42 of the Civil Procedure Rules, 2010 (the Rules) that deals with appeals does not provide that an appeal will abate if not placed before a Judge for directions as provided for under Rule 11 thereof. It will be noted that the Appellant has not applied for dismissal of the appeal for want of prosecution, a remedy that is provided for in the Rules.
6. The appeal is still in place, and for this reason the Respondent’s application is premature. The same must be refused. It is dismissed with no order as to costs. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 10TH DAY OF SEPTEMBER 2013
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 20TH DAY OF SEPTEMBER 2013