[2009] KEHC 3370 (KLR)
The court found that since the application for stay was determined in favour of the applicant and the order of execution was set aside, and as no appeal had been preferred against the ruling, it was just and proper to release the security deposit of Kshs. 200,000 to the applicant or her advocate. The court was...
Source-derived case information.
- Citation
- [2009] KEHC 3370 (KLR)
- Parties
- Plaintiff: Wanjohi Kabia; Defendant: Joseph Wahome t/a Simba Building Construction; Defendant: Elena Wangechi Wahome
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 868 of 1988
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Release of Security Deposit
- Outcome
- Application allowed. Security deposit to be released to the applicant or her advocate. Applicant awarded costs of the application.
- Judges
- JL Osiemo
- Legal Topics
- Security for Costs, Stay of Execution, Release of Funds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wanjohi Kabia
Plaintiff
Joseph Wahome t/a Simba Building Construction
Defendant
Elena Wangechi Wahome
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Release of Security Deposit
Legal Issues
- 1 Whether the security deposit of Kshs. 200,000 paid into court should be released to the applicant and/or her advocate.
- 2 Whether the applicant is entitled to costs of the application.
Ratio Decidendi
The court found that since the application for stay was determined in favour of the applicant and the order of execution was set aside, and as no appeal had been preferred against the ruling, it was just and proper to release the security deposit of Kshs. 200,000 to the applicant or her advocate. The court was satisfied that the application was meritorious and allowed it in terms of the main prayer, also awarding costs to the applicant.
Court Disposition
Application allowed. Security deposit to be released to the applicant or her advocate. Applicant awarded costs of the application.
Orders
- The security amounting to Kshs. 200,000 paid into court be returned to the applicant and/or her advocate on record.
- The applicant is awarded costs of this application.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
(MILIMANI LAW COURTS)
CIVIL CASE 868 OF 1988
WANJOHI KABIA……………..............……………..PLAINTIFF
VERSUS
JOSEPH WAHOME T/A SIMBA
BUILDING CONSTRUCTION…………………1ST DEFENDANT
ELENA WANGECHI WAHOME……………….2ND DEFENDANT
R U L I N G
This is an application by way of Notice of Motion by the Defendant seeking orders that the security amounting to Kshs. 200,000/= paid into court vide order dated 20th November 2006 be returned to the Applicant and/or her advocate on record.
In support of the application Anthony Mwangi Nganga has sworn an affidavit in which he avers; that pursuant to the application dated 14th December 2006, and amended on 24th September 2007, the Applicant herein was ordered by this Honourable court to deposit Sh. 200,000/= as security for stay pending the hearing and determination of that application; that the application was heard on diverse dates and the ruling thereof delivered on 16th May 2008 in her favour and in particular setting aside the order of execution against her; that she now applies to this Honourable Court to order that the amount paid as security and deposited with this court be released to her and/or her advocate on record and that it is only mete and just that orderS sought be granted as no appeal has been preferred against the said ruling.
Having considered the application the affidavit and submissions by Counsel for the Applicant I am satisfied that the application is meritorious. Accordingly the same is allowed in terms of prayer 1 of the Notice of Motion dated 3rd September 2008.
The Applicant is also entitled to costs of this application and it is so ordered.
Dated and delivered at Nairobi this 15th day of May 2009.
J. L. A. OSIEMO
JUDGE