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ELCPartially AllowedNot stated in the judgment· [2015] KEELC 594 (KLR)

RNO (Suing As Guardian Ad-Litem And Next Friend To DOM) v Moses Choge Chesire [2015] KEELC 594 (KLR)

Environment and Land Court
3 March 2015
MSMUNYAO SILA
1,530 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Nakuru court ruled disputed property rent must go into a neutral joint account pending trial, not toward the lender's loan.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (Munyao Sila J) on a notice of motion dated 9 October 2014 filed by the defendant in a suit filed on 19 April 2012 by R N O on behalf of D O M, said to be of unsound mind. The plaintiff challenges the sale and transfer of two land parcels, alleged to be matrimonial property, to the defendant, seeking cancellation of the defendant's title and a permanent injunction; an interim injunction was in place. The defendant's application sought orders that the plaintiff and tenants pay rent into the defendant's loan account with Co-operative Bank Building Society, dismissal of the suit for want of prosecution, eviction of the plaintiff, and costs. The defendant averred the properties were charged to finance the purchase, the loan was in arrears, and the property risked auction. Counsel for the defendant abandoned the dismissal prayer; counsel for the plaintiff opposed the loan-account prayer, citing the consent order of 20 May 2014 directing rent into a joint counsel account, and noted there was no counterclaim for eviction. The court held the interim-only wording of the rent prayer to be a typographical error, declined to order payment into the loan account because the ownership dispute was unresolved, and ordered Pata Commercial Agencies to collect rent and deposit it into a joint counsel account or, if none is opened within a day, into court. The plaintiff was to pay rent or give security, failing which she would vacate, and was warned against interfering with rent collection on pain of contempt. Tenants were to be notified. The dismissal and eviction prayers were not granted. No costs order appears in the final orders.

Key legal issues

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01

Destination of rent pending the hearing of the ownership dispute

Holding

Rent to be collected by an agent and paid into a joint counsel account or, if none is opened, into court, not the defendant's loan account

Reasoning

The court balanced the competing prejudices: paying into the loan account could irreversibly dissipate funds the plaintiff might recover if she succeeds, while the defendant risks accruing loan interest if he succeeds. A neutral joint account mirrors the parties' own earlier consent of 20 May 2014 and preserves the status quo until the suit is determined.

p. 2
02

Whether the interim-only wording of prayer (b) defeated the application

Holding

The court treated the interim-only wording as a typographical error and granted the orders up to finalization of the suit

Reasoning

Counsel for the plaintiff argued the prayer sought interim orders only. The court held the applicant's intention to collect rent until finalization of the suit was beyond doubt, and excused the drafting defect as typographical, deciding the application on substance rather than form.

p. 2
03

Effect of the consent order on the defendant's application

Holding

The consent did not bar the application; the court effectively restored the consent arrangement by ordering rent into the joint account

Reasoning

The plaintiff argued the defendant was estopped by the consent order directing rent into a joint account. The court noted it was unclear whether the joint account was ever opened, observed that the plaintiff could not benefit from her own omission, and adopted the substance of the consent as the appropriate order.

p. 2

Legal principles established

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  • Where ownership of charged suit property is disputed, rent collected pending trial should be held neutrally (joint account or court) rather than applied to the loan, protecting both parties' potential outcomes
  • An occupier who neither pays rent nor gives security for it may be ordered to vacate the suit property pending trial

Court orders

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  1. 1.Pata Commercial Agencies appointed to collect rent from the suit premises and deposit it into the joint interest-earning account of counsel for the plaintiff and defendant if opened, and if none is opened, into court
  2. 2.The plaintiff to pay rent similar to what other tenants are paying or give security for its payment, failing which she will vacate the suit properties until the suit is heard and finalized
  3. 3.The plaintiff not to interfere with collection of rent by the appointed agent, on pain of contempt
  4. 4.A notice to be sent to tenants directing them to pay rent to Pata Commercial Agencies and not directly to the plaintiff or defendant
  5. 5.Counsel given one day to open the joint account
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes concerning ownership of land parcels (not expressly cited in the ruling)

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, "RNO (Suing As Guardian Ad-Litem And Next Friend To DOM) v Moses Choge Chesire [2015] KEELC 594 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/594/eng@2015-03-03

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