Timothy Kamande v Edward Njenga Kinyagi [2020] KEHC 1060 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 275 OF 2016

TIMOTHY KAMANDE..........................................................APPELLANT/APPLICANT

-VERSUS-

EDWARD NJENGA KINYAGI.......................................RESPONDENT/RESPONDENT

RULING

1. This ruling is precipitated by the Notice of Motion dated 23rdSeptember, 2020 brought by the appellant/applicant herein. The Motion is supported by the grounds set out on its face and the facts stated in the affidavit of advocate Solomon Wamwayi. The applicant sought for an order for the release of the decretal sum of Kshs.1,462,920/= together with the accrued interest, which sum was deposited in a joint interest earning account in the names of the parties’ advocates, namely Account Number 014000048893 at Family Bank-Moi Avenue Branch. The applicant also sought for costs on the Motion.

2. In opposing the Motion, the respondent put in a replyingaffidavit.

3.  When the Motion came up for hearing before this court on 4thSeptember, 2020 the parties were directed to file written submissions, which they did.

4. I have considered both the grounds set out on the face of theMotion and the facts deponed in the affidavits supporting andchallenging the Motion.

5. A brief background of the matter is that the respondent hereinfiled a suit against the applicant and a third party, before the trial court, and sought for both general and special damages plus costs of the suit and interest thereon, arising out of a road traffic accident. The applicant later filed a statement of defence to deny the claim.

6. The record shows that the hearing of the suit proceeded exparte and that the trial court eventually entered judgment in favour of the respondent and against the applicant and a third party not before court.

7. Subsequently, the applicant filed an application seeking to havethe ex parte judgment set aside and which application was ultimately heard and dismissed with costs by the trial court vide its ruling delivered on 22nd April 2016.

8. The above ruling is the subject of the instant appeal. Upon theapplicant’s application dated 6th June, 2016, this court granted him leave to appeal.  An order for a stay of execution pending the hearing and determination of the appeal was also granted on the condition that the applicant deposits the decretal sum of Kshs.1,462,920/ in an interest earning account in the joint names of the parties’ advocates and or firm of advocates.

9. Upon hearing the parties on the appeal, this court vide itsjudgment delivered on 13th December, 2019 allowed it and consequently set aside the impugned ruling and the ex parte judgment and further ordered that the suit be reinstated for hearing before a different magistrate from the one who had heard the suit originally.

10. The applicant is now before this court seeking to have theabovementioned decretal sum of Kshs.1,462,920/= plus interest accrued thereon released to him.

11. In his supporting affidavit, Mr. Solomon Wamwayi  learnedadvocate for the appellant states that no appeal has been lodged against the judgment of this court and that the suit has not been set down for hearing.

12. The deponent further states that the applicant requires themonies to enable him meet some urgent financial needs and that the respondent does not stand to be prejudiced should the order for release be granted.

13. In his submissions, the applicant argues that the ex partejudgment and all consequential orders having been set aside and the suit having been reinstated for hearing, there is no basis on which the subject deposit which is the decretal sum should remain in the joint account.

14. The applicant is of the view that no allegation has been made bythe respondent to the effect that the applicant is not a man of means and hence the decretal sum cannot be held as security at this point.

15. The applicant also argues that if the decretal sum continues toremain in the joint account, he will be denied access to his monies in the absence of a decree or order in place to justify the sum remaining in the said account.

16. In reply, the respondent asserts that if the order sought isgranted, he stands to suffer irreparable loss should the joint interest earning account be closed and if he succeeds upon retrial of his suit.

17. The respondent further averred that from the wording of itsjudgment on appeal, this court had no intention of ordering for the release of the decretal sum until such time as the suit is heard and determined and that the respondent has not particularized the financial challenges that would require him to access the decretal sum.

18. In view of the foregoing, the respondent urges this court not togrant the order sought until his suit is heard and determined,in the interest of justice.

19. After considering the rival positions taken on the subject, I notethat it is not in dispute that the applicant complied with this court’s earlier orders requiring him to deposit the sum of Kshs.1,462,920/= being the decretal sum in a joint interest earning account, pending the hearing and determination of the appeal.

20. It is also not in dispute that the applicant was successful on    appeal and there is nothing to indicate that the respondent has   appealed against against the judgment delivered by this court.

21. In my view, upon determination of the appeal and theconsequent order for reinstatement of the suit, there is really no basis for denying the applicant access to the decretal sum currently being held in the joint interest earning account. There are currently no orders in place in respect to a stay of execution.

22. The upshot is that the Motion is found to be meritorious.  The same is allowed as prayed.  Consequently, an order is issued directing that the sum of kssh.1,462,920/= plus interest held in account  014000048893 at Family Bank, Moi Avenue Branch, be released to Timothy Kamande, the appellant herein within 30 days.  A fair order on costs is to order which I hereby that each party bears its own costs on the motion.

Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 11th day of December, 2020.

...........................

J. K.  SERGON

JUDGE

In the presence of:

......................................... for the Appellant/Applicant

........................................................ for the Respondent