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ELCPartially AllowedNot stated in excerpt· [2022] KEELC 3477 (KLR)

Housing Finance Company of Kenya Limited v Kenya Broadcasting Corporation & another; Kensko Agro Products (Third party) (Environment & Land Case 282 of 2013) [2022] KEELC 3477 (KLR)

Environment and Land Court
28 July 2022
NMN A Matheka
719 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Once an appeal over land rent money is dismissed, the court can order funds held jointly by lawyers released to the winning party.

What this practically means

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Executive summary

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By a notice of motion dated May 24, 2021 brought under Order 40 rules 1, 2 and 3 and Order 51 rule 1 of the Civil Procedure Rules and sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, the plaintiff sought release of monies held in a joint interest-earning account at Housing Finance Corporation Limited in the names of the parties' advocates, Kanyi J & Company Advocates and Kale Maina & Bundotich Advocates. The background was a judgment of A Omollo J dated February 14, 2018 entering judgment for the plaintiff with mesne profits of Kshs 25,000 per month from October 2005. Following the 1st defendant's appeal (Civil Appeal No. 82 of 2018), the parties consented on May 8, 2018 that Kshs 3,975,000 be deposited in a joint account pending the appeal's outcome. The appeal was dismissed on March 7, 2019. The plaintiff's letter of July 21, 2020 requesting release went unanswered. The defendants and third party were served but filed no replying affidavit or grounds of opposition, so the application was unopposed. Matheka J perused the record, verified the judgment, the consent deposit and the dismissal of the appeal, found the application merited, and ordered release of the monies and interest to the plaintiff's advocates, with no orders as to costs given the undefended nature of the application. Delivered at Mombasa on July 28, 2022.

Key legal issues

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01

Release of funds deposited in a joint advocates' account under a consent order

Holding

The court found the application for release merited after verifying from the court record the judgment, the consent deposit and the dismissal of the appeal

Reasoning

The court perused the record and confirmed the judgment of A Omollo of February 14, 2018 awarding mesne profits, the consent of May 8, 2018 directing deposit of the sums in a joint interest-earning account pending appeal, the dismissal of the 1st defendant's appeal on March 7, 2019, and the applicant's unheeded request of July 21, 2020. The application was unopposed, so it was allowed with no order as to costs.

p. 2

Legal principles established

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  • Where a deposit is held in a joint interest-earning account of the parties' advocates pending the outcome of an appeal, and the appeal is dismissed, the deposit is properly released to the successful party

Court orders

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  1. 1.Release to the applicant's advocates all monies and interest held in account number 05xxxx at Housing Finance Corporation Limited in the joint names of Kanyi J & Company Advocates and Kale Maina & Bundotich Advocates
  2. 2.No orders as to costs, the application having been undefended
Jurisdiction invoked
Order 40 rules 1, 2 and 3; Order 51 rule 1 of the Civil Procedure Rules (2010); sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act (Cap 21)

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, "Housing Finance Company of Kenya Limited v Kenya Broadcasting Corporation & another; Kensko Agro Products (Third party) (Environment & Land Case 282 of 2013) [2022] KEELC 3477 (KLR)", Case Analysis (2022). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3477/eng@2022-07-28

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