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ELCAllowednot stated in judgment (application dated 26th March 2024 in a pending appeal)· [2024] KEELC 5383 (KLR)

Muriu & another v Embakasi Ranching Company Limited & another (Environment and Land Appeal E093 of 2021) [2024] KEELC 5383 (KLR)

High Court of Kenya (appellate jurisdiction from the Magistrate's Court)
18 July 2024
OMOguttu Mboya
3,254 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court confirmed that security money held in escrow must be released once an appeal is decided, and that lawyers can validly swear affidavits on file matters.

What this practically means

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Executive summary

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This judgment disposes of a Notice of Application dated 26th March 2024 filed by the 2nd Respondent/Applicant, represented by the firm of Guandaru Thuita & Co. Advocates, seeking release of KShs. 300,000/- with interest held in a joint escrow account at Sidian Bank (account number 01052150024589 in the names Muchangi Nduati & Co. & Guandaru Thuita & Co. Advocates). The deposit had been made as security under a conditional stay of execution pending the hearing and determination of an appeal to this court from the Magistrate's Court; that appeal was heard and dismissed. The Appellants/Respondents opposed the application through a Replying Affidavit of James Kamau Wanyoike, contending that the Supporting Affidavit sworn by Mr. Guandaru Thuita, Advocate, was defective because counsel had descended into the arena, and that release of the monies should await a further appeal filed before the Court of Appeal, namely Civil Appeal No. E567 of 2023. Oguttu Mboya, J framed two issues. On the first, the court held that an advocate may swear an affidavit provided the facts are within his knowledge or drawn from the court record, invoking Order 19 Rule 3 of the Civil Procedure Rules 2010 and the Supreme Court's decision in the 2022 presidential election petition; the impugned affidavit merely rehashed matters on the record and was valid. On the second issue, the court held that the stay and its underlying security lapsed upon delivery of judgment, the judgment creditor held an uncontested Certificate of Taxation, and the pendency of the Court of Appeal matter does not operate as an automatic stay. The application was allowed and costs of KShs. 25,000/- awarded to the Applicant.

Key legal issues

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01

Validity of a Supporting Affidavit sworn by counsel

Holding

The affidavit sworn by Guandaru Thuita, Advocate was valid; an advocate may swear an affidavit on facts within his knowledge or drawn from the court record, and the blanket contention that counsel cannot swear an affidavit is erroneous.

Reasoning

The court held that no law bars an advocate conversant with the facts from swearing an affidavit, citing Order 19 Rule 3 of the Civil Procedure Rules 2010 and Rule 9 of the Advocates (Practice) Rules. However, counsel should not depone to contentious or evidentiary facts, risking cross-examination. Here the affidavit merely rehashed matters on the court record regarding the stay order and escrow deposit, so it complied with Order 19 Rule 3.

p. 5
02

Release of escrow monies after dismissal of the appeal

Holding

The monies of KShs. 300,000/- deposited as security for stay were to be released to the Applicant since the stay lapsed on the delivery of judgment dismissing the appeal.

Reasoning

The deposit was security under Order 42 Rule 6(2) pending hearing and determination of the appeal. Once the appeal was determined, the stay and its underlying security lapsed. The judgment creditor had obtained a Certificate of Taxation, uncontested, and the pending appeal in the Court of Appeal (Civil Appeal No. E567 of 2023) was not part of the stay order and does not ipso facto operate as a stay.

p. 6

Legal principles established

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  • An advocate may swear an affidavit in a matter in which he is retained provided the averments are within his own knowledge or borne out of the court record, but not on contentious or evidentiary facts.
  • Security deposited in an escrow account as a condition of stay lapses upon delivery of the appeal judgment and becomes releasable to the judgment creditor.
  • The pendency of a further appeal before the Court of Appeal does not operate as an automatic stay.

Court orders

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  1. 1.The monies KShs. 300,000/- together with interest held at Sidian Bank account number 01052150024589 be and are hereby released to the firm of Guandaru Thuita & Co. Advocates for onward transmission to the Applicant.
  2. 2.The manager in charge of Sidian Bank Limited is directed to facilitate the release of the said monies in compliance with clause (i).
  3. 3.Costs of the Application awarded to the 2nd Respondent/Applicant.
  4. 4.Costs assessed and certified in the sum of KShs. 25,000/- to avert filing of a Supplementary Bill of Costs.
On appeal from
Magistrate's Court
Jurisdiction invoked
Appellate jurisdiction; Civil Procedure Rules 2010, Order 42 Rule 6 (stay of execution and security in Escrow account)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muriu & another v Embakasi Ranching Company Limited & another (Environment and Land Appeal E093 of 2021) [2024] KEELC 5383 (KLR)", Case Analysis (2024). not stated in judgment (application dated 26th March 2024 in a pending appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5383/eng@2024-07-18

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