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Court of AppealPartially AllowedCivil Application No. NAI 24 of 2011 (UR 17/2011)· [2015] KECA 359 (KLR)

Duncan Nduracha v Faud M. Mohammed & 3 others [2015] KECA 359 (KLR)

Court of Appeal
2 October 2015
PKP. Kihara KariukiMartha Karambu KoomeM. K. KoomePhilomena Mbete MwiluP. M. Mwilu
850 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it can release money deposited under its own orders after an appeal ends, even if related cases are ongoing elsewhere.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (P. Kihara Kariuki, PCA, Koome and Mwilu, JJ.A) delivered on 2nd October 2015 on a Motion on Notice dated 28th April 2015 by Faud M. Mohammed, the 1st respondent in the cause title but applicant in the motion, seeking release of Kshs. 1,440,000 plus interest in mesne profits deposited in a joint advocates' account pursuant to the Court's order of 6th May 2011 pending the hearing and determination of Civil Appeal No. 203 of 2011. That appeal was heard and dismissed by a judgment of 12th March 2015 without any order for disposal of the deposit. Duncan Nduracha opposed the application, arguing that the deposit featured in Mombasa ELC No. 76 of 2015, that the application was incompetent as it should have been made in the High Court, and that the applicant came to court with unclean hands. The Court rejected all three objections. It held it had jurisdiction under sections 3A and 3B of the Appellate Jurisdiction Act and rules 42, 43(1) and 47 of its Rules, since the deposit order originated from its own orders and, from the constitutional hierarchy of courts, the Court of Appeal ranks higher than the High Court. Allegations of unclean hands and compliance with orders in the ELC matter were left to the forum seized of those proceedings. Finding no compelling reason to prevent release, the Court allowed the motion in terms of prayer 1 and awarded costs to the applicant against the respondent.

Key legal issues

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01

Jurisdiction of the Court of Appeal to release a deposit held pursuant to its own orders

Holding

The Court had jurisdiction to entertain the application under sections 3A and 3B of the Appellate Jurisdiction Act; the application complied with the Court's rules and the deposit order originated from the Court itself.

Reasoning

The respondent asserted without legal or constitutional basis that the Court was denied jurisdiction. The Court held that the deposit was instigated by its own order of 6th May 2011 and that the joint account arrangement flowed from its orders. From the constitutional hierarchy of courts, the Court of Appeal ranks higher than the High Court, so the existence of Mombasa ELC No. 76 of 2015 did not oust its jurisdiction over disposal of the deposit.

p. 2
02

Release of the deposit after dismissal of the appeal

Holding

Once Civil Appeal No. 203 of 2011 was heard and dismissed, the condition underlying the deposit fell away and the applicant was entitled to release of the deposit in the absence of compelling reasons to the contrary.

Reasoning

The only condition in the 6th May 2011 ruling was that mesne profits be deposited pending the hearing and determination of the appeal. The appeal was determined and dismissed. The precise amount deposited and the identity of the bank were immaterial, having been overtaken by events, since deposits were in fact made by the applicant as required.

p. 2
03

Allegations of unclean hands

Holding

Allegations of unclean hands and non-compliance with court orders in execution proceedings are matters for the court seized of those proceedings and do not bar release of the deposit.

Reasoning

The respondent contended the applicant came to court with unclean hands and that the deposit featured in Mombasa ELC No. 76 of 2015. The Court declined to embarrass the High Court by commenting on compliance or non-compliance with its orders, holding the respondent remains free to ventilate his case at the High Court within the confines of the law.

p. 2

Legal principles established

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  • Where a deposit is made pursuant to orders of the Court of Appeal pending the hearing and determination of an appeal, the Court retains jurisdiction, under sections 3A and 3B of the Appellate Jurisdiction Act, to dispose of that deposit after the appeal is determined, notwithstanding the existence of related proceedings in the High Court.
  • By virtue of the hierarchy of courts under the Constitution, the Court of Appeal ranks higher than the High Court, and its orders over a subject matter are not displaced by parallel High Court proceedings.

Court orders

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  1. 1.The Notice of Motion dated 28th April 2015 is allowed in terms of prayer 1, being the release of the sum of Kshs. 1,440,000 plus interest in mesne profits held in the joint advocates' account
  2. 2.Costs of the application are awarded to the applicant (Faud M. Mohammed) against the respondent (Duncan Nduracha)

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B
  • Rules of this Court (Court of Appeal Rules)rule 42
  • Rules of this Court (Court of Appeal Rules)rule 43(1)
  • Rules of this Court (Court of Appeal Rules)rule 47
On appeal from
High Court of Kenya at Mombasa
HC Miscellaneous Application No. 1 of 2011
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; rules 42, 43(1) and 47 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Duncan Nduracha v Faud M. Mohammed & 3 others [2015] KECA 359 (KLR)", Case Analysis (2015). Civil Application No. NAI 24 of 2011 (UR 17/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/359/eng@2015-10-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.