Ngooro Timothy & James Wahome v Grace Wairimu & Njoroge [2017] KEHC 1550 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL APPEAL NO. 516 OF 2014

NGOORO TIMOTHY........................................................................1ST   APPELLANT

JAMES WAHOME ..............................................................................2ND APPELLANT

-VERSUS-

GRACE WAIRIMU ...........................................................................1ST RESPONDENT

NJOROGE........................................................................................2ND RESPONDENT

RULING

The Application before the court is the Notice of Motion dated 30th November, 2016 filed by the Respondents seeking an order that this Court be pleased to release the funds herein deposited in an interest earning account with Kenya Commercial Bank, Kipande Branch pursuant to a Court Order of 20th May, 2015 to the Respondents/Applicant and the costs of the Application be awarded.

In the Supporting Affidavit of Rose Obaga, it is averred that the Appellants applied for and obtained on 30th May, 2015 stay of execution orders pending the hearing and determination of the Appeal. That it was a condition of the said stay that the decretal sum be deposited in a joint interest earning bank account in the names of the advocates on record, as security. Such account was opened and the decretal sum deposited. The deponent further avers that it was a condition of the said stay of execution that the Appeal was to be prosecuted within twelve (12) months of the date of the said order and in default the Appeal would stand dismissed.

The Application is opposed by the Appellants who filed a Replying Affidavit dated 18th January, 2017 sworn by ALFRED DEYA.  Among the grounds advanced in opposing the application are that, they understood the consent to mean that the appeal be fixed for hearing within 12 months failure to which the stay order would lapse.

On the same day , 18th January, 2017, the Appellants filed an application seeking an order “that the Honourable Court be pleased to review , vacate and/or set aside paragraph 2 of the consent order of 20th May, 2015 requiring that;-, “ the appeal be prosecuted within 12 months from the date herein and in default the appeal stands dismissed.” and the same be reviewed , vacated and/or set aside to state that; “the sum shall be held until the appeal herein is heard and determined and an application made to the Court for an appropriate order as to its disposal.”

A ruling was delivered on 22nd September, 2017 dismissing the above application after the court found that it had no merits. When the instant application came up for hearing on 27th November, 2017, there was no appearance on the part of the Appellants and the Applicants urged this Court to allow the application in light of the fact that the Appeal stood dismissed after the lapse of one year period and also in light of the fact that the Application to review the consent orders had been dismissed.

As it stands, the Appeal has already been dismissed by way of effluxion of time. The application which sought to have the Appeal reinstated by review of the consent order was also dismissed. This leaves this Court with no reason to continue holding the decretal sum which had been deposited as security.

The upshot of the foregoing is that the application dated 30th November, 2011 is hereby allowed with further orders that the said decretal sum be released to the Applicant within the next 14 days from the date of this ruling.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 1stDay of December, 2017.

…………………………….

L. NJUGUNA

JUDGE

In the Presence of

…………………………. For the 1st Appellant

…………………………. For the 2nd Appellant

…………………………. For the 1st Respondent

…………………………. For the 2nd Respondent