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ELCDismissedRuling on application dated 18/3/2024 (appeal arising from Ruiru Magistrates' Environment and Land Case No. 157 of 2019)· [2025] KEELC 74 (KLR)

Njeru v Kamau & another (Civil Appeal E102 of 2021) [2025] KEELC 74 (KLR)

Environment and Land Court
16 January 2025
1,033 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to release Kshs. 250,000 deposited for a stay of execution, holding the money is security that must await assessment of costs and mesne profits.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court (B M Eboso, J) delivered virtually at Meru ELC on 16 January 2025, on an application dated 18/3/2024 by the respondents in the main appeal (James Munyua Kamau and another). They sought release to their joint advocates of moneys deposited in court by the appellant pursuant to the court's ruling of 16/3/2022, which had been made as a condition for stay of execution of a decree of the Ruiru Magistrates' Court ordering the appellant's eviction. The applicants argued the deposit was rent for premises occupied by the appellant and, the appeal having been disposed of, should be released. The appellant opposed, contending the deposit was security for costs of the appeal, not rent, and that release of Kshs. 250,000 as full rent would prejudice her since the 1st respondent had repossessed and leased half the premises to the 2nd respondent. The court held that the 16/3/2022 orders rested on the security requirement of Order 42 rule 6(2), the need to keep the appellant in occupation pending appeal, and the need to cushion the decree-holder against loss of rental income; but no order designated the deposit as adjudged rent. Absent a certificate of taxation, a decree or order on mesne profits, or mutual consent, release was premature. The application was rejected and each party ordered to bear their own costs; the original file was to be returned to Thika ELC.

Key legal issues

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01

Character of the money deposited in court pursuant to the ruling of 16/3/2022

Holding

The deposit was security, not adjudged monthly rent, since no order designated it as rent and no evidence of reasonable rent or mesne profits was led

Reasoning

The orders of 16/3/2022 rested on the security requirement of Order 42 rule 6(2), the appellant's continued occupation pending appeal, and the need to cushion the decree-holder against loss of rental income or mesne profits. Without evidence of reasonable monthly rent or mesne profits, the court could not designate the deposit as adjudged rent; it therefore remained security for the ultimate decree and any subsequent assessment.

p. 2
02

Whether the deposit could be released before assessment of costs and mesne profits

Holding

Release was premature absent a certificate of taxation, a decree or order on mesne profits, or mutual consent

Reasoning

No certificate of costs demonstrated that the awarded costs of the appeal had been taxed; no decree or order exhibited related to assessment of rent or mesne profits; and any mesne profits claim would have to account for the appellant occupying only part of the original demised premises. The deposited money will abide such assessments.

p. 2
03

Whether the appeal is the proper forum for the claim to post-judgment rental income or mesne profits

Holding

It is not; such a claim requires oral evidence and cross-examination in a normal trial

Reasoning

The court exercised appellate jurisdiction, and while mindful of the need to cushion the 1st respondent against loss of rental income, an appellate court cannot determine a mesne profits claim requiring oral evidence and cross-examination; the correct course is a separate proceeding before the trial court.

p. 2

Legal principles established

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  • Moneys deposited in court under Order 42 rule 6(2) as a condition for stay of execution serve as security for the ultimate decree and for adjudged rent or mesne profits, and cannot be released absent a decree, certificate of taxation, or mutual consent

Court orders

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  1. 1.The application dated 18/3/2024 is rejected for being premature
  2. 2.Parties to bear their respective costs of the application
  3. 3.The money deposited in court shall abide assessment of costs and/or assessment of mesne profits for the relevant post-judgment period
  4. 4.The relevant original court file shall be returned to Thika ELC forthwith and the Court Registry at Thika ELC shall upload the ruling onto the CTS immediately

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(2)
On appeal from
Ruiru Magistrates' Court (Environment and Land Case No. 157 of 2019)
ELC No. 157 of 2019
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court; the deposit was made under Order 42 rule 6(2) of the Civil Procedure Rules as a condition for stay of execution pending appeal

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, "Njeru v Kamau & another (Civil Appeal E102 of 2021) [2025] KEELC 74 (KLR)", Case Analysis (2025). Ruling on application dated 18/3/2024 (appeal arising from Ruiru Magistrates' Environment and Land Case No. 157 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/74/eng@2025-01-16

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