[2024] KEHC 5380 (KLR)
The court found that the sum of Kshs.235,000 was deposited in compliance with a court order to secure the decretal sum in CMCC No. 137 of 2015, pending the outcome of an appeal. The respondent's appeal (H.C.C.A No. 13 of 2017) was dismissed for want of prosecution on 19/07/2022, and there is no pending appeal. There...
Source-derived case information.
- Citation
- [2024] KEHC 5380 (KLR)
- Parties
- Applicant: Maitai Wangombe; Respondent: Nancy Nyambura Maina
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 10 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Release of Deposited Decretal Sum After Dismissal of Appeal
- Outcome
- application allowed
- Judges
- AK Ndung'u
- Legal Topics
- Release of Deposit, Decretal Sum, Appeal Dismissal, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maitai Wangombe
Applicant
Nancy Nyambura Maina
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Release of Deposited Decretal Sum After Dismissal of Appeal
Legal Issues
- 1 Whether the applicant is entitled to the release of the deposited decretal sum and accrued interest following the dismissal of the respondent's appeal.
- 2 Whether there is any legal basis for continued holding of the deposit after the appeal was dismissed.
Ratio Decidendi
The court found that the sum of Kshs.235,000 was deposited in compliance with a court order to secure the decretal sum in CMCC No. 137 of 2015, pending the outcome of an appeal. The respondent's appeal (H.C.C.A No. 13 of 2017) was dismissed for want of prosecution on 19/07/2022, and there is no pending appeal. There is no legal basis for continued holding of the deposit. The applicant, as the successful party, is entitled to the release of the deposited sum and accrued interest. The application was unopposed, and the evidence supported the applicant's claim. The court therefore ordered the release of all monies deposited in the specified account together with interest to the applicant's...
Court Disposition
application allowed
Orders
- The manager Housing Finance Company Limited (HFC Limited) Nyeri Branch to release all monies deposited in account number xxxx together with interest to Ms Kebuka Wachira & Company Advocates forthwith.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
Wangombe v Maina (Miscellaneous Civil Application 10 of 2017) [2024] KEHC 5380 (KLR) (16 May 2024) (Ruling)
Neutral citation: [2024] KEHC 5380 (KLR)
Republic of Kenya
In the High Court at Nanyuki
Miscellaneous Civil Application 10 of 2017
AK Ndung'u, J
May 16, 2024
Between
Maitai Wangombe
Applicant
and
Nancy Nyambura Maina
Respondent
Ruling
1. This ruling resolves the notice of motion herein dated 15/09/2022. It follows an earlier ruling dated 12/3/2024 requiring that evidence of resolution of H.C.C.A No. 13 of 2017 be placed before the Court. The order sought in the application is that this court do authorize the manager Housing Finance Company Limited Nyeri Branch to release all monies deposited in A/C No. xxxx together with interest accrued. The Applicant prays for costs.
2. The application is grounded on the fact that an amount of Kshs.235,000/- was deposited in the said bank pending the outcome of Nanyuki High Court Civil Appeal No. 13 of 2017. That appeal was dismissed on the 19/07/2022. It is urged that the said amount was a decretal sum payable to the Applicant herein and since the appeal was dismissed, the entire amount and the interest accrued should be released to the Applicant.
3. The application is further supported by an affidavit of the Applicant in which he deponed that on 28/04/2017, a decree was entered in CMCC No. 137 of 2015. Consequently, the Respondent filed an application to appeal out of time and on 14/12/2017, the application was allowed and she was ordered to deposit a sum of Kshs.235,000/- in an interest joint account in the names of both advocates. The said amount was deposited in Housing Finance of Kenya. The Respondent filed appeal number 13 of 2017 but on 19/07/2022, the appeal was dismissed for want of prosecution. Therefore, since there is no appeal pending, the amount deposited and the interest accrued should be released to his advocate for onward transmission to him.
4. The application is not opposed. There is evidence that the sum in question was deposited in the named bank from orders of court arising from a consent of the parties recorded on December 14, 2017. The Respondent was granted leave to file appeal out of time. The file H.C.C.A No. 13 of 2017 has been placed before the court and there is confirmation that this court, (Waweru J), dismissed the appeal for want of prosecution on 19th July 2022.
5. The sum of Shillings 235,000 was deposited to secure the decreatal sum in CMCC No. 137 of 2015. The appeal having been dismissed, there is no reason whatsoever for the continued holding of the deposit in Housing Finance of Kenya.
6. The applicant is entitled to enjoy the fruits of his judgment.
7. With the result that the application is wholly successful. I allow the same and make the following orders:1. The manager Housing Finance Company Limited (HFC Limited) Nyeri Branch do release all monies deposited in account number xxxx together with interest to Ms Kebuka Wachira & Company Advocates forthwith.2. No order as to costs
DATED SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF MAY, 2024A.K. NDUNG’UJUDGE