1. The plaintiff filed a suit Iten SPM E&L Civil Case No. 29 of 2021. The Senior Principal Magistrate(SPM) delivered judgment in favour of the plaintiff on 27th January 2021. Dissatisfied with the judgement, the defendants/ applicants moved Eldoret Environment and Land Court for an order to lodge, file and serve an appeal out of time against the Judgement, stay of execution of the judgement and decree, and stay of all subsequent proceedings before the SPM court in Iten.
2. By a ruling dated 20th April 2022, Obaga J granted a conditional stay of execution of the lower Court decree ensuing from the ruling and any consequential orders therefrom. The conditional terms of the stay order were as follows:
“1. Time to appeal against the judgment of Senior Resident Magistrate’s Court in E&L case No. 29 of 2018 delivered on 27th January, 2021 is extended for 14 days from today’s date.
2.The said appeal shall be filed before Iten ELC Court.
3.A stay of execution pending the hearing and determination of the intended appeal is hereby granted.
4. The Applicants shall jointly deposit a sum of Kshs two hundred thousand as security for costs before Iten Court within 90 days failing to which the stay shall automatically lapse.
5.The costs of this application shall be in the cause.”
3. The applicant failed to comply with the aforesaid conditions within the stipulated time. He filed a notice of motion application on 21st July 2022 before this Court seeking enlargement of time within which to comply with the conditions set in the ruling of 20th April 2022
4. The court allowed the application vide the ruling delivered on 12th October 2022 and directed the applicant to file the intended appeal within 7 days failing which the appeal would stand dismissed.
5. The applicant deposited Kshs 200, 000 with the Court on 20th September 2022 and filed and lodged the intended appeal as ELC Appeal No E017 of 2022 on 18th October 2023. The said appeal was heard and determined by this Court and a judgment delivered on 27th June 2023 setting aside the judgement of the lower court and substituting it with an order dismissing the plaintiff/respondent’s case in the lower court with costs to the defendants/appellants.
6. The applicant has filed the instant application dated 29th April, 2024 seeking an order for release of the sum deposited in court being Kshs. 200,000/as security for costs to the depositor.
7. The application is premised on the grounds in support of the application as deposed in the supporting affidavit of Collins Chege sworn on 29th April 2024.
8. Despite being served with the application though their advocates M/ S Maritim & Company Advocates on 17th May 2024, the respondents did not respond to the application.
11. I have considered the application, the grounds and affidavit in support. The sum of Kshs. 200,000/= was deposited subject to the condition that the sum was to be held pending the hearing and determination of the intended appeal. The appeal was heard and determined by this Court and a judgment delivered on 27th June 2023. The condition upon which the deposit of Kshs 200,000/= was made has been fulfilled. ELC Appeal No. E017 of 2022 having been heard and determined in favour of the applicant, it follows that the deposit of Kshs 200,000/= cannot continue to be held. It is the considered view of this court that when an appeal is heard and determined, the effect of the judgment is to lapse any interlocutory orders that were made prior to the delivery of the final judgment.
12. Consequently, the application is found to have merits and l grant prayer 2 with no orders on costs as the application was not defended.
13. Orders accordingly.
Dated, signed and delivered at Iten this 11th day of July 2024
Ruling delivered virtually in the presence of:
Ms. Martin holding brief for Mr. Arusei for the Appellant/ Applicant.
No appearance for the Respondent.
Court Assistant: Christine.