Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Civil Suit No. 288 of 2012 (Notice of Motion dated 24th July 2024)· [2025] KEELC 346 (KLR)

Koira Limited v El-Busaidy & 2 others Administrators of the Estate of Sir Ali Salim El Busaidi) & another (Environment & Land Case 288 of 2012) [2025] KEELC 346 (KLR)

Environment and Land Court
5 February 2025
2,029 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to release rent held in a joint account because the tenant company hadn't first proven it wasn't behind on rent.

What this practically means

#

Executive summary

#
This was a notice of motion dated 24th July 2024 by the plaintiff in ELC Civil Suit No. 288 of 2012, seeking release of funds held in a joint interest-earning account (NCBA Bank, Nkrumah Road Branch) operated by the advocates of the plaintiff and the 1st defendant, into which net monthly rents from Title Numbers Mombasa/Block XXI/151, 152 and 498 had been deposited pursuant to a court order of 28th February 2014. The plaintiff argued that the Court of Appeal's judgment of 14th April 2023 in CACA 98 of 2019, which set aside the ELC judgment of 22nd March 2019 and compelled the 1st defendant to renew the plaintiff's lease for 99 years from 1st January 2013, meant the funds should be released to its advocates. The 1st defendant opposed through grounds of opposition, contending that the plaintiff remained its lessee in occupation, in rent arrears for the expired and renewed terms, and had not accounted for monies paid into the account. S. M. Kibunja J held that the order for deposit of rent lapsed upon final determination of the suit, following the Court of Appeal's decision in Eastland Hotel Limited v Wafula Simiyu & Co Advocates. However, since the landlord-tenant relationship persisted and the plaintiff, still in occupation, remained bound by the implied covenant to pay rent under section 66(1)(a) of the Land Act, it could not claim the accrued rent monies without first establishing it was not in arrears. The application was dismissed with costs to the 1st defendant.

Key legal issues

#
01

Whether the funds in the joint interest-earning account should be released to the plaintiff

Holding

The application for release of the funds was dismissed because the plaintiff did not establish that it is free of rent arrears.

Reasoning

The 28th February 2014 order tied the deposit of net monthly rent to the final determination of the suit, which occurred upon the Court of Appeal's judgment of 14th April 2023. The deposit therefore lapsed and the funds represent accrued rent. Because the landlord-tenant relationship persisted and the plaintiff remained in occupation in arrears, it could not claim the monies without first proving it is not in rent arrears.

p. 4
02

Costs of the application

Holding

Costs awarded to the 1st defendant, to be paid by the plaintiff.

Reasoning

Under section 27 of the Civil Procedure Act, costs follow the event unless the court for good cause otherwise orders. The plaintiff's application having failed, the 1st defendant was awarded costs.

p. 4

Legal principles established

#
  • Interlocutory orders, including an order for conditional deposit of funds into a joint account, lapse upon the delivery of the final judgment determining the suit.
  • A lessee in occupation remains bound by the implied covenant to pay rent under section 66(1)(a) of the Land Act notwithstanding ongoing litigation with the landlord.

Court orders

#
  1. 1.The plaintiff's application dated the 24th July 2024 has no merits and is dismissed.
  2. 2.The 1st defendant's costs to be paid by the plaintiff.

Authorities

#

Legislation

  • Civil Procedure Actsections 1A, 1B and 3
  • Civil Procedure Actsection 27
  • Civil Procedure RulesOrder 51 Rule 1
  • Land Act No. 6 of 2012section 66(1)(a)

Cases cited (1)

  • Eastland Hotel Limited versus Wafula Simiyu & Co Advocates
    [2015] KECA 495 (KLR)
Jurisdiction invoked
Sections 1A, 1B and 3 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules (application), arising in ELC Civil Suit No. 288 of 2012

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Koira Limited v El-Busaidy & 2 others Administrators of the Estate of Sir Ali Salim El Busaidi) & another (Environment & Land Case 288 of 2012) [2025] KEELC 346 (KLR)", Case Analysis (2025). ELC Civil Suit No. 288 of 2012 (Notice of Motion dated 24th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/346/eng@2025-02-05

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