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Court of AppealAllowedCivil Application No. NAI. 13 of 2014 (UR 8/2014)· [2015] KECA 495 (KLR)

Eastland Hotel Limited v Wafula Simiyu & Co Advocates [2015] KECA 495 (KLR)

Court of Appeal
31 July 2015
1,483 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that money deposited to secure a stay lapses once the appeal is decided, and must be returned with interest.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi, delivered by a coram of Visram, J. Mohammed and Otieno-Odek, JJ.A., determined a Notice of Motion dated 28th April 2015 by Eastland Hotel Limited seeking release of Kshs.5,000,000/= deposited in a joint interest-earning account at KCB Milimani Branch in the names of the parties' advocates. The deposit had been ordered by the Court's conditional stay ruling of 21st March 2014, pending the hearing and determination of the intended appeal against the High Court's dismissal (ruling of 21st January 2014) of a reference challenging the taxation of the respondent advocates' Bill of Costs. The intended appeal was lodged as Civil Appeal No. 105 of 2014 and was allowed by judgment dated 24th October 2014, setting aside the High Court ruling and ordering a fresh taxation before a different taxing master. The respondent opposed release, contending the deposit was security for the Bill of Costs pending the fresh taxation and that releasing it would cause a miscarriage of justice. The Court held that the deposit was purely conditional pending determination of the appeal and not security for the taxed costs; the condition had been fulfilled; and upon delivery of the final judgment all interlocutory orders, including the conditional stay and deposit order, lapsed. The Court allowed the application, ordered release of the deposit plus accrued interest to the applicant through its advocates, and awarded the applicant the costs of the application.

Key legal issues

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01

Character of the conditional deposit - security or interlocutory conditional stay deposit

Holding

The deposit of Kshs.5,000,000/= was a conditional deposit pending the hearing and determination of the intended appeal, not security for the Bill of Costs ordered to be taxed afresh.

Reasoning

The Court examined the terms of its ruling of 21st March 2014, which directed the deposit to be held in a joint interest-earning account pending the hearing and determination of the intended appeal or until further orders. The respondent argued the deposit stood as security because the Court had ordered a fresh taxation before a different taxing master. The Court rejected this, holding that the express condition tied the deposit only to the appeal's determination, not to the fresh taxation process.

p. 2
02

Effect of final determination of an appeal on interlocutory orders

Holding

Upon the hearing and determination of an appeal, interlocutory orders made prior to the final judgment lapse, and the conditional deposit under the stay order became due and repayable.

Reasoning

The Court found that the condition - hearing and determination of the intended appeal (Civil Appeal No. 105 of 2014) - had been fulfilled when judgment was delivered on 24th October 2014 allowing the appeal and setting aside the High Court ruling of 21st January 2014. Since the whole taxation process was to start afresh, there were no interlocutory orders in existence on record, and the deposit could not continue to be held.

p. 3

Legal principles established

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  • When an appeal is heard and determined, interlocutory orders made pending that appeal lapse upon delivery of the final judgment, and a conditional deposit made under such orders is discharged and becomes due and repayable upon fulfilment of the condition.

Court orders

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  1. 1.The Notice of Motion application dated 28th April 2015 is allowed
  2. 2.The amount of Kshs.5,000,000/= plus the accrued interest thereon held in the joint account of Kenyariri & Associates Advocates and Wafula Simiyu & Co. Advocates at KCB Milimani Branch is to be released to the firm of Kenyariri & Associates Advocates for onward transmission to the applicant
  3. 3.The respondent shall pay the costs of this application
On appeal from
High Court
H.C. Misc. Appl. No. 713 of 2012
Jurisdiction invoked
Inherent jurisdiction of the Court of Appeal to give effect to its own orders, arising from its ruling of 21st March 2014 granting conditional stay of execution and ordering the deposit of Kshs.5,000,000/= in a joint interest-earning account pending the hearing and determination of the intended appeal or until further orders

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Eastland Hotel Limited v Wafula Simiyu & Co Advocates [2015] KECA 495 (KLR)", Case Analysis (2015). Civil Application No. NAI. 13 of 2014 (UR 8/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/495/eng@2015-07-31

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