1. The Applicant herein filed a chamber summons application dated 17th April, 2024, seeking;
a) Spent
b) That this appeal having been dismissed the Ksh. 355,215/= plus interest accrued thereon deposited in a joint interest earning account at the I & M Bank Limited Kisii Branch account no 0200371533551200 in the joint interest earning account in the names of Okongo Wandago & Co. Advocates be released to the firm of G.M Nyambati & Co. Advocates Diamond Trust bank Kisii Branch account no.0480199001.
c) That costs be provided for .
2. The application is supported by the annexed affidavit of Gideon Migiro Nyambati Advocate and the grounds that :
i. As a condition for stay of execution pending the hearing and determination of this appeal an order was made that the entire taxed amount be deposited joint interest earning account in the names of Okongo Wandago & Co. Advocates be released to the firm of G.M Nyambati & Co. Advocates .
ii. The sum of Kshs. 355,215 deposited in the I & M Bank Limited Kisii Branch account no 0200371533551200 .
In the affidavit of counsel Nyambati he deponed that the money was deposited in the joint account in the names of both firms as per the deposit initiation ‘’GMN-01’’ . He said the Judgment dismissed on 13.4.24 the appeal and he annexed a copy of the same ‘’GMN-02’’ . Also that the money ought to be released to satisfy he taxed costs on Misc application No. 22 of 2021 orders as the orders for deposit have since lapsed .Further that he served respondents advocates with a consent for transfer of the .money into their account but they have not responded . He annexed the Affidavit of service GMN 3’’ . The respondent Mr Benard O Elijah filed a replying affidavit dated 5.6.24 .he admitted that the appeal was dismissed but denied that the orders for the deposit of the taxed sum were issued herein . He deponed that the said deposit order was made in Miscellaneous Civil application No. 108 of 2022. He does not deny that the sum was deposited in a joint intertest earning account as stated by the applicant . Also that the same security is subject of Kisii Misc civil application no E043 of 2024 which has interim orders issued by Hon Lady Justice Okwany on 17.4.24 as per a copy of the order BOE –
1.
3. I have carefully considered the application, the response , the record and the submissions. I note that the order for deposit of the money in a joint interest earning account was not made in this file but in Kisii Miscellaneous application No E067 of 2022 between the parties herein as per the order dated 5.6.22 filed herein . The application herein thus ought to have been filed in the said file and not herein . I need not to determine the other issues in the application in the circumstances. I proceed to strike out the application dated 17.4.24 . Costs to the respondent.
T.A ODERA
JUDGE
9.6.25
DEIVERED VIRTUALLY IN VIA TEAMS PLATFORM ON THIS 9TH DAY OF JUNE 20225 IN THE PRESENCE OF
a) Spent
b) That this appeal having been dismissed the Ksh. 355,215/= plus interest accrued thereon deposited in a joint interest earning account at the I & M Bank Limited Kisii Branch account no 0200371533551200 in the joint interest earning account in the names of Okongo Wandago & Co. Advocates be released to the firm of G.M Nyambati & Co. Advocates Diamond Trust bank Kisii Branch account no.0480199001.
c) That costs be provided for .
2. The application is supported by the annexed affidavit of Gideon Migiro Nyambati Advocate and the grounds that :
i. As a condition for stay of execution pending the hearing and determination of this appeal an order was made that the entire taxed amount be deposited joint interest earning account in the names of Okongo Wandago & Co. Advocates be released to the firm of G.M Nyambati & Co. Advocates .
ii. The sum of Kshs. 355,215 deposited in the I & M Bank Limited Kisii Branch account no 0200371533551200 .
In the affidavit of counsel Nyambati he deponed that the money was deposited in the joint account in the names of both firms as per the deposit initiation ‘’GMN-01’’ . He said the Judgment dismissed on 13.4.24 the appeal and he annexed a copy of the same ‘’GMN-02’’ . Also that the money ought to be released to satisfy he taxed costs on Misc application No. 22 of 2021 orders as the orders for deposit have since lapsed .Further that he served respondents advocates with a consent for transfer of the .money into their account but they have not responded . He annexed the Affidavit of service GMN 3’’ . The respondent Mr Benard O Elijah filed a replying affidavit dated 5.6.24 .he admitted that the appeal was dismissed but denied that the orders for the deposit of the taxed sum were issued herein . He deponed that the said deposit order was made in Miscellaneous Civil application No. 108 of 2022. He does not deny that the sum was deposited in a joint intertest earning account as stated by the applicant . Also that the same security is subject of Kisii Misc civil application no E043 of 2024 which has interim orders issued by Hon Lady Justice Okwany on 17.4.24 as per a copy of the order BOE –
1.
3. I have carefully considered the application, the response , the record and the submissions. I note that the order for deposit of the money in a joint interest earning account was not made in this file but in Kisii Miscellaneous application No E067 of 2022 between the parties herein as per the order dated 5.6.22 filed herein . The application herein thus ought to have been filed in the said file and not herein . I need not to determine the other issues in the application in the circumstances. I proceed to strike out the application dated 17.4.24 . Costs to the respondent.
T.A ODERA
JUDGE
9.6.25
DEIVERED VIRTUALLY IN VIA TEAMS PLATFORM ON THIS 9TH DAY OF JUNE 20225 IN THE PRESENCE OF