Francisco Kabira Gathara & Elena Wachera Kariuki v John Mukiria Waweru & Grace Njeri Kimani [2020] KEHC 4690 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL APPEAL NO. 755 OF 2016

FRANCISCO KABIRA GATHARA...............1ST APPELLANT

ELENA WACHERA KARIUKI.....................2ND APPELLANT

VERSUS

JOHN MUKIRIA WAWERU.................... 1ST RESPONDENT

GRACE NJERI KIMANI ......................... 2ND RESPONDENT

RULING

1. The appellants approached this court vide a Notice of Motion dated 14th February 2020 seeking that a sum of KShs.3,617,896 they deposited in court on 14th July 2017 as a condition for stay of execution pending hearing and disposal of the appeal be released to them.

2. The application is premised on grounds that the appeal has now been determined and it is only fair that the money be released to them.

3. The application is opposed through a replying affidavit sworn by the 1st respondent on 26th May 2020.  While admitting that the appellants deposited the aforesaid monies in court pursuant to a condition for grant of stay of execution pending appeal, the 1st respondent contended that the money should continue being held as security for costs since the suit in the lower court was still pending and the respondents are apprehensive that when it is determined, the appellants may not be in a position to pay the decretal amount.

4. The application was argued orally before me on 24th June 2020.  Learned counsel appearing for the parties namely, Mr. Kariuki for the applicants and Mr. Wambua for the respondents exclusively relied on the averments made in the affidavits supporting and opposing the motion.

5. I have considered the application and the affidavits on record.  I have also perused the court record.  The record confirms that indeed the appeal was heard and determined in the appellants’ favour on 19th December 2019.  It is not disputed that the appellants’ deposited the money in question as a precondition for stay of execution pending disposal of the appeal.  Now that the appeal has been determined, I agree with the appellants that no good reason exists to justify further retention of the money by this court.

6. In my view, the respondents’ opposition to the motion is, to say the least, unfounded.  The trial court’s proceedings are separate and distinct from the appeal that has now been determined by this court and in any event, the respondents’ apprehension that the appellants may not be in a position to pay the decretal amount when the suit in the lower court is finally determined lacks any basis and is purely speculative.  It presupposes that the suit will be determined in the respondents’ favour while the truth is that none of the parties or even this court, can foretell the outcome of the suit.

7. In view of the foregoing, I find merit in the motion and it is hereby allowed in terms of prayer 1 with no orders as to costs.

It is so ordered.

DATED, SIGNED and DELIVERED at NAIROBI this 30th day of June 2020.

C. W. GITHUA

JUDGE

In the presence of:

Mr. Kariuki for the appellants

Mr. Wambua for the respondents

Ms Mwinzi: Court Assistant