1.There are two Applications before the court dated 30/10/2019 and 2/12/2019.
2.The first application was filed by the Appellant, Transglobal Cargo Centre Limited seeking orders that:1)That the funds deposited in court on the 13/5/2008 be released to the applicant and this matter be marked as settled.2)That costs of the application be provided for;On grounds that the appeal was dismissed for want of prosecution on the 19/7/2018, but made no orders for the release of the funds to the Appellant who was owed the money by the Respondent.
3.The second application dated 2/12/2019 is filed by the Respondent Bridgeway Logistics Limited seeking orders that:
4.On grounds that by an order of the court for an application for stay of execution pending hearing and determination of the appeal, dated 26/10/2007 the court granted temporary stay orders upon conditions that;i.The applicant pays to the Respondent Kshs. 150,196 towards its charges; andii.The applicant also deposits a further sum in court of Kshs. 100,000/= as security; with each party paying own costs.
5.The Appellant in arguing its position relies on the Affidavit in support of its application dated 30/10/2019 and Grounds of Opposition by the Respondent, together with its Replying Affidavit has filed submissions dated 26/11/2021.
6.The Appellant is represented by Kaplan & Stratton Advocates while Gichuki Kingara Advocates represent the Respondent. The Appeal hereof was dismissed by the Court (Njuguna J) on the 19/7/2018 but despite the Appellant requesting for release of the security of Kshs. 100,000/=, the court made no order for the release of the money.The Appellant is willing to have the matter settled upon the deposit of Kshs. 100,000/= (less than amount owed) released to it.
7.For the Respondent, I have considered the submissions dated 26/11/2021. Both parties seek to have the sum of Kshs. 100,000/= deposited in court as security for to be released to them; thus the question and issue arises to whom the Kshs. 100,000/= ought to be released to.
8.A reading of the court’s ruling in respect of the deposit of Kshs. 100,000/= is dated 9/5/2008 arising from the application by the Appellant dated 26/10/2007. The order as extracted by the Deputy Registrar reads;1)That the temporary mandatory injunction compelling the Defendant to release to the Plaintiff its goods be and is hereby varied on condition that:i.That the Plaintiff do hereby pay to the Defendant the sum of Kshs. 150,196.000 towards its charges (which sum has already been tendered)ii.That the plaintiff do hereby deposit forthwith in court a further sum of Kshs. 100,000/= as security.2)That each party to bear its own costs of this application.
9.Without a doubt, it is plain and clear that the sum of Kshs. 100,000/= was deposited by the plaintiff (now Appellant) as security. It is also clear that each party was ordered to pay own costs of the application; It is also not in dispute that the appeal was dismissed with costs.The order of 9/5/2008 was made when the appeal was still “a life”, and therefore the deposit for security was to cushion the Respondent should the appeal not be successful for the due performance of the decree.
10.Needles to state that two months thereafter, the appeal was dismissed with costs to the Respondent. I agree with the Respondent as to the purpose of security as envisaged under Order 42 Rule 6 of the Civil Procedure Rules; to prevent a defendant or Respondent from being left without recompense having defended a suit, in this case, the appeal, for any costs or charges payable to him should the appeal be unsuccessful – as stated in the case Patrick Ngeta Kimanzi vs Marcus Mutua Muluvi & 2 others  eKLR.
11.I also agree with the Respondent that the security deposited ought to be released to the party who deposited the said deposit at the conclusion of the matter (Appeal). It is trite that costs ought to be agreed or taxed, if ordered by the court against any party to the proceedings.A careful consideration of the proceedings does not state or show whether the costs of the appeal were ever agreed or even taxed. The court of Appeal in Patrick Ngeta Kimanzi (Supra) was categorical that unless costs are agreed by both or more parties to a matter, they shall be taxed.
12.To that end then, I find and hold that the sum of Kshs. 100,000/= deposited as security by the Appellant shall be released to the depositor, the Appellant. Costs of the appeal shall be agreed upon or taxed by the Taxing Officer of the Court. Once the agreed or taxed costs are determined, the Respondent shall recover the said costs from the Appellant under the laid down procedure under the Civil Procedure Rules 2010.
13.Consequently, the Appellant’s application dated 30/10/2019 is allowed to the extent that the funds deposited in court in the sum of Kshs. 100,000/= shall be released to the Appellant.
14.The Application dated 2/12/2019 filed by the Respondent is hereby dismissed.
15.For the two applications, each party shall bear own costs of their respective applications.Orders accordingly.