Okwach John & Thomas Obondo v Daniel Kiprugut Korir [2021] KEHC 9479 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

CIVIL APPEAL NO.11 OF 2017

OKWACH JOHN.........................................1ST APPELLANT/RESPONDENT

THOMAS OBONDO...................................2ND APPELLANT/RESPONDENT

VERSUS

DANIEL KIPRUGUT KORIR..............................RESPONDENT/APPLICANT

RULING

1.  The Application coming for consideration in this ruling is the Notice of Motion dated 18/9/2020 seeking the release of Kshs.1,190,601 deposited in court by the Appellant’s/Respondents vide receipts No.0427157 and 0427158 to the Respondent’s Advocate for onward transmission to the Respondent.

2.  The Application is based on the grounds on the face of it and supported by the Affidavit of the Respondent/Applicant Daniel Kiprugut Korir of even date.

3. The Applicant has deposed in the Supporting Affidavit that on 1/11/2018, Hon. Lady Justice Mumbi Ngugi granted the Appellant conditional stay and ordered them to deposit in court the entire decretal sum within 21 days.

4.  The Appellants only deposited 1,190,601 and the balance of Kshs.1,190,519 has not been deposited to date, two years after the said order was issued by Hon. Lady Justice Mumbi Ngugi. Order 42 Rule 6 of the Civil Procedure Rules, establishes the conditions that must be met before stay of execution can be granted. The grounds laid out are that the party seeking stay must establish that the application for stay was made without unreasonable delay, that security for the decree or order has been given and substantial loss may result to the applicant unless the order for stay is made. The Appellant/Respondents therefore failed to give the security for decree/order as was required.

5.  Further the Applicant stated that the appeal has not been prosecuted within a reasonable time.

6.  The Respondent who has commenced execution proceedings in the lower court in now seeking release of the amount deposited in court by the Appellant.

7. The Appellants filed a Replying Affidavit dated 23/10/2020 in which they stated that they are willing to deposit the balance of the decretal sum and to prosecute the appeal, however no explanation as to the undue delay in depositing the other half of the decretal amount or in prosecuting the appeal has been given by the Appellants.

8. I have considered the submissions filed by both parties and I find that there is no plausible reason advanced by the Appellants why the orders issued on 1/11/2018 were not complied with. The Appellant/Respondent failed to deposit the entire decretal amount within the 21day period as was required, the orders of stay of execution pending appeal therefore stands discharged, and there is therefore no need to continue holding half the decretal amount that was deposited in court as security thereby denying the Applicant/Respondents the fruits of his judgement. The High Court at Nairobi, in Civil Appeal 38 of 2013, Akiida 2000 Company Ltd versus Josephat Wamuyu Gitau, observed that “Indeed, the court orders for stay of execution issued on 26th March, 2013 were conditional. The stay of execution was to last until the hearing and determination of the three (3) applications which applications stood dismissed as at 10th March, 2016. It is only just therefore that the decretal sum is released to the Applicant.”

9.  The Appellants did not seek extension of time to comply with the court orders and neither have they taken any steps to prosecute the appeal.

10.  I find the Application dated 18/9/2020 has merit and I allow it and direct that the sum of Kshs.1,190,601/= deposited in court by the Appellants be released to the Respondent.

11.  The appeal is accordingly dismissed with costs.

Orders to issue accordingly.

Delivered, signed and dated at Kericho this 29th day of January 2021.

A. N. ONGERI

JUDGE