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ELCAllowedNot stated in the judgment (ELC, Mombasa - suit filed 31 January 2013)· [2022] KEELC 1436 (KLR)

Rishard Abdulrehman Khator & another v Idha Marie Ahmed & 2 others [2022] KEELC 1436 (KLR)

Environment and Land Court
16 February 2022
2,951 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Mombasa court confirmed that co-owners of land in undivided shares can demand a full account of rent collected by whoever occupied the property, even while an appeal is pending.

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 Mombasa (Munyao Sila J) on a Notice of Motion dated 12 February 2021 by the plaintiffs, administrators of the estates of Tima Ali Bahir and Fatuma Ali Bashir, seeking to enforce the order for accounts contained in the judgment of Omollo J delivered on 31 October 2019 by Yano J. The main suit concerned Plot No. 1738 Section VI Mainland North, held in undivided shares (2/3rds to the plaintiffs, 1/6th each to Rukiya Binti Soud and Mohamed Bin Ali Bashir). The 1st defendant, Idha Marie Ahmed, who claimed to have purchased the whole property and counterclaimed for adverse possession, was found to be a trespasser on 2/3rds of the property; the judgment ordered him to pay the plaintiffs a 2/3 pro rata share of income accruing from use of the property from 1 July 2012 until surrender of vacant possession. The defendant opposed the application, arguing that the property had not been surveyed, demarcated or partitioned, so the extent of the plaintiffs' share on the ground was unknown, and that his pending appeal should halt enforcement. The court held that the argument was flawed: shares in undivided property are virtual and not actual on the ground, and the remedy for exclusive use by one proprietor is an account of income apportioned pro rata, not partition. The court held Order 21 Rule 13 and Rule 17 of the Civil Procedure Rules govern post-judgment accounts and mesne profits. The application was allowed: the 1st defendant was directed to file a verified statement of rent account from 1 July 2012 within 14 days, verification before the Deputy Registrar, payment of 2/3rds of the verified amount within 14 days failing which execution to issue, future rents shared in the ratio 1/6th, 1/6th and 2/3rds, with costs to the applicants.

Key legal issues

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01

Whether partition or demarcation is a precondition to an order for accounts where land is held in undivided shares

Holding

No - where ownership is in undivided shares and one proprietor has assumed exclusive use and collection of income, the remedy is an account apportioned pro rata; partition is a separate avenue that would alter the nature of ownership.

Reasoning

The court reasoned that in undivided shares no party has an exclusive right to any portion; shares are virtual, not actual on the ground. The judge in the main suit had found the respondent assumed exclusive use of the whole premises and had counterclaimed for adverse possession of the whole land, which is why accounts for 2/3rds of income were ordered. Partition would convert undivided shares into individual ownership of subdivisions; the judgment order for accounts must be given effect.

p. 2
02

Whether a pending appeal suspends the obligation to comply with the order for accounts

Holding

No - absent a stay of execution or further order from the Court of Appeal, the judgment order for accounts must be complied with.

Reasoning

The respondent had lodged an appeal before the Court of Appeal, but the court held that since there is no order of stay of execution, it must determine the application. The respondent needs to comply with the judgment order bar any further order that may come from the Court of Appeal. The judgment did not disturb the decision of Omollo J.

p. 3
03

Which procedural provisions govern the taking of accounts under the judgment

Holding

Order 21 Rule 13 (decrees for possession and mesne profits) and Rule 17 (special directions on mode of taking accounts), not Order 20 which concerns pre-judgment orders for accounts.

Reasoning

The court interpreted Order 20 as covering applications for accounts made before judgment, citing Order 20 Rule 3. Since the accounts herein were sought in respect of an order contained in the judgment, Order 21 Rule 13 applies; the mode of inquiry is governed by Rule 17, under which the court may give special directions by a subsequent order, though none were given in the judgment.

p. 3

Legal principles established

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  • Where property is held in undivided shares and one co-proprietor has exclusively used the premises and collected rent, the remedy is an account of income apportioned pro rata to the shares, not partition; an order for accounts in a judgment must be complied with absent a stay of execution.
  • An order for accounts made in a judgment must be given effect unless stayed; a pending appeal without a stay of execution does not excuse compliance.
  • Where a suit is for possession of immovable property and rent or mesne profits, and judgment directs an inquiry, Order 21 Rule 13 applies, and Rule 17 empowers the court to give special directions on the mode of taking accounts by a subsequent order.

Court orders

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  1. 1.The 1st defendant to file with the Deputy Registrar a complete and accurate statement of rent account, with an affidavit of verification, for rent received from 1 July 2012 to date, within 14 days
  2. 2.Parties to appear before the Deputy Registrar for verification of the accounts
  3. 3.Upon verification, 2/3rds of the amount verified to be paid to the applicants within 14 days thereof, failing which execution to issue
  4. 4.Any future rents to be shared in the ratio of 1/6th, 1/6th and 2/3rds
  5. 5.Costs of the application to the applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 20 Rule 49
  • Civil Procedure RulesOrder 20 Rule 3
  • Civil Procedure RulesOrder 21 Rule 13
  • Civil Procedure RulesOrder 21 Rule 17
  • Civil Procedure RulesOrder 21 (as referenced by counsel)
  • Civil Procedure RulesOrder 28 Rules 9 and 10 (referred by counsel)
  • Civil Procedure ActSection 52 (referred by counsel)
Jurisdiction invoked
Environment and Land Court jurisdiction; application under Order 20 Rule 49 of the Civil Procedure Rules; court applied Order 21 Rule 13 and Rule 17 of the Civil Procedure Rules and Section 52 of the Civil Procedure Act

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, "Rishard Abdulrehman Khator & another v Idha Marie Ahmed & 2 others [2022] KEELC 1436 (KLR)", Case Analysis (2022). Not stated in the judgment (ELC, Mombasa - suit filed 31 January 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1436/eng@2022-02-16

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