Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 84 of 1985

Waweru Mangere v Sirinyi Ole Kuriti alias Sirinyi Ole Musiro

Court of Appeal
19 October 2000
1,241 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled it cannot release money deposited in a High Court case—only the High Court itself can do that.

What this practically means

#

Executive summary

#
The appellant's suit seeking specific performance of a 1965 agreement for sale of Ngong land was dismissed by the High Court (Trainor J) partly for failure to obtain Land Control Board consent in time. He appealed in 1985. By a notice of motion dated 9th April, 1999, he sought termination of the appeal or its marking as settled, withdrawal of an earlier motion, and release of Kshs 160,341.85 with interest held with Credit Finance Corporation in the name of the Registrar - funds deposited pursuant to superior court orders as conditions for stay of execution and to cover potential mesne profits. He deponed that a fresh agreement had been concluded, Land Control Board consent obtained in 1990, and the land transferred to him. The respondent, in a replying affidavit, objected to release of the funds and to settlement, deponing he had thumb-printed and signed documents under threats of incarceration. The Court held it lacked jurisdiction to release the deposited funds, since only the superior court that ordered the deposit could order their release absent a decision determining the appeal. It refused to mark the appeal as settled for want of the respondent's consent, allowed withdrawal of the earlier motion, and, the appellant being unwilling to prosecute the appeal, dismissed the appeal for want of prosecution. The application of 9th April, 1999 was dismissed except for the first prayer. As neither the respondent nor his advocate attended the hearing, no order as to costs was made for the appeal or the application. The judgment affirms the Court of Appeal's purely statutory jurisdiction under section 2 of the Appellate Jurisdiction Act.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court has jurisdiction to order release of funds deposited with Credit Finance Corporation pursuant to a superior court order
  2. 2.Whether the appeal can be marked as settled without the respondent's consent
  3. 3.What should happen to the appeal the appellant no longer wishes to prosecute

Key legal issues

#
01

Jurisdiction to release deposited funds

Holding

The Court of Appeal lacks jurisdiction to order release of money deposited pursuant to a superior court order; only that court may order release absent a decision on the appeal.

Reasoning

The applicant deponed the funds were deposited by order of the superior court as conditions for stay of execution. The Court held it could not release them without a decision determining the appeal in the appellant's favour, and noted the applicant sought termination or settlement of the appeal precisely to use such an order to claim the money.

p. 2
02

Marking an appeal as settled

Holding

An appeal can only be marked as settled with the consent of the parties; the respondent's objection, including his claim of duress, precluded settlement.

Reasoning

The respondent's replying affidavit objected to both release of the money and marking the appeal as settled, deponing that he thumb-printed and signed documents under threats of incarceration in police cells. Without consent, settlement was impossible.

p. 2
03

Disposition of an abandoned appeal

Holding

Where the appellant does not wish to prosecute the appeal and has not applied for its withdrawal, the appropriate order is dismissal for want of prosecution.

Reasoning

The appellant was not interested in pursuing the appeal and had not applied to withdraw it. The Court could not force him to prosecute it, and considered it inappropriate to leave it pending, so it dismissed the appeal for want of prosecution.

p. 2

Legal principles established

#
  • The Court of Appeal exercises only such jurisdiction as is conferred on it by statute.
  • The Court may dispose of appeals only by decision on the merits, marking as settled by consent, dismissal for non-attendance, or withdrawal at the parties' request.
  • Funds deposited pursuant to a superior court order may only be released by that court absent a decision determining the appeal.

Court orders

#
  1. 1.The application dated 17th January, 1984 marked as withdrawn with no order as to costs
  2. 2.The appeal dismissed for want of prosecution
  3. 3.The applicant's application dated 9th April, 1999 dismissed except for the first prayer which was allowed
  4. 4.No order as to the costs of both the appeal and the application

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.S. No. 192 of 1979 (O.S.)
Jurisdiction invoked
Appellate Jurisdiction Act, Cap 9, Laws of Kenya, section 2

Relief refused

#

Release of Kshs 160,341.85 with interest held with Credit Finance Corporation to the applicant's advocates

The Court lacks jurisdiction; the money was deposited pursuant to an order of the superior court, which alone may order its release absent a decision on the appeal

p. 2

Marking the appeal as settled

The respondent objected and did not consent; he deponed he thumb-printed documents under threats of incarceration

p. 2

Costs

No order as to the costs of both the appeal and the application; the application dated 17th January, 1984 marked as withdrawn with no order as to costs.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We have no hesitation whatsoever in holding that we lack the jurisdiction to issue such an order.
p. 2Jurisdiction over release of deposited funds
The Court of Appeal, by dint of the provisions of section 2 of the Appellate Jurisdiction Act, cap 9, Laws of Kenya, exercises such jurisdiction as is conferred on it by statute.
p. 2Statutory basis of appellate jurisdiction
the order that commends itself to us to make is that the appeal be and is hereby dismissed for want of prosecution.
p. 2Final orders - dismissal of appeal
We also dismiss the applicant’s application dated 9th April, 1999, except for the first prayer which we allow.
p. 2Final orders - disposal of the application
As neither the respondent nor his advocate attended the hearing of both the application and the appeal, we make no order as to the costs of both the appeal and the application.
p. 3Final orders - costs

Issues in the judgment

#
minor

Inconsistent dating of the earlier motion: 1984 versus 1994

minor

The land certificate annexed was incomplete, the encumbrance section missing

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Waweru Mangere v Sirinyi Ole Kuriti alias Sirinyi Ole Musiro", Case Analysis (2000). Civil Appeal No. 84 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/426/eng@2000-10-19

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