Case ID:160571

Francisco Kabira Gathara & another v John Mukiria Waweru & another [2020] eKLR

Case Metadata

Case Number:

Civil Appeal 755 of 2016

Parties:

Francisco Kabira Gathara & Elena Wachera Kariuki v John Mukiria Waweru & Grace Njeri Kimani

Date Delivered:

30 Jun 2020

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Cecilia Wathaiya Githua

Citation:

Francisco Kabira Gathara & another v John Mukiria Waweru & another [2020] eKLR

Advocates:

Mr. Kariuki for the appellants

Mr. Wambua for the respondents

Court Division:

Civil

County:

Nairobi

Advocates:

Mr. Kariuki for the appellants

Mr. Wambua for the respondents

History Advocates:

Both Parties Represented

Case Outcome:

Motion allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 755 OF 2016

FRANCISCO KABIRA GATHARA...............1

ST

APPELLANT

ELENA WACHERA KARIUKI.....................2

ND

APPELLANT

VERSUS

JOHN MUKIRIA WAWERU.................... 1

ST

RESPONDENT

GRACE NJERI KIMANI ......................... 2

ND

RESPONDENT

RULING

1.

The appellants approached this court vide a Notice of Motion dated 14

th

February 2020 seeking that a sum of KShs.3,617,896 they deposited in court on 14

th

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 1

st

respondent on 26

th

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 1

st

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 24

th

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 19

th

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 30

th

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