Francis Njenga Wachira & 2 others v Teresia Nyokabi & another [2022] KEHC 12576 (KLR)

Francis Njenga Wachira & 2 others v Teresia Nyokabi & another (Civil Appeal 93 of 2020) [2022] KEHC 12576 (KLR) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12576 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal 93 of 2020

MM Kasango, J

June 16, 2022

Between

Francis Njenga Wachira

1st Appellant

Peter Ndungu Mwangi

2nd Appellant

Joseph Muiruri Ndungu

3rd Appellant

and

Teresia Nyokabi Macharia

1st Respondent

Stephen Kuria Njuguna (suing as legal representative of the estate of Daniel Mburu Njuguna (deceased)

2nd Respondent

(An appeal from the judgment of the Senior Principal Magistrate’s Court at Githunguri (Hon. D. Kavedza, SPM) dated 2nd July, 2020 in Githunguri Civil case No. 6 of 2019)

Ruling

1. Before me is an application filed by the respondents. The application is dated October 29, 2021. The respondent seeks the release to them of Kshs 2milion deposited into this court by the appellant.

2. On August 18, 2020, this court ordered the appellants to deposit into this court, Kshs 2million as condition for the granting of interim ex parte stay of execution of the judgment of July 2, 2019 in Githunguri Magistrate’s Court in Civil Case No 6 of 2019. That order of August 18, 2020 required the appellants to deposit the aforestated amount within 21 days. The court receipt in this file however shows that the appellant made that deposit, outside the 21 days period on October 1, 2020. It is that deposit that the respondent seeks to be released to them.

3. The respondents base their prayer on the grounds:-a)That since June 16, 2021 the appellants have not moved the court in this appeal.b)That the appellants have not obtained an order extending the period to make the deposit of Kshs 2 million.c)That the appellants are no longer interested in the appeal.”

4. The application was not opposed by the appellant.

5. I have considered the application. The application is in my view made on misinterpretation of the law. Judgment in favour of the respondents was entered by the Githunguri Magistrate’s Court in Civil CaseNo 6 of 2019 for Kshs 4,484,502. The decree for that amount in favour of the respondents is a decree of the Githunguri Magistrate’s Court. That decree has not been sent to this court for execution as envisaged in section 31 of the Civil Procedure Act. The import of section 30 of that Act is that a decree is only executed in the court that passed it unless it is transferred for execution before another court. There is no order either of this court, nor is it proved to be made by the Githunguri Magistrate’s Court ordering that decree to be executed before this court. In view of that finding, this court has no basis to order the release of the money held by this court. Such an order can only be made by the court which passed the decree.

6. It is because of the above holding that the application dated October 29, 2020 is dismissed with no orders as to the costs.

7. I order this file be placed before the Deputy Registrar for purpose of ensuring the lower court file is brought to this court.

8. Orders accordingly.

RULING DATED AND DELIVERED AT KIAMBU THIS 16TH DAY OF JUNE, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceFor Appellants: - Ms. MainaFor Respondent :- Ms. KimunyaRULING delivered virtually.MARY KASANGOJUDGE