Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in judgment· [2025] KEELC 1483 (KLR)

Gichengo v Ndiva (Environment and Land Appeal 66 of 2021) [2025] KEELC 1483 (KLR)

Environment and Land Court
21 March 2025
2,256 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court ordered rent from a disputed Mtwapa plot be kept in a joint escrow account, protecting the buyer if the seller's appeal fails.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Mombasa (L. L. Naikuni, J), delivered on 21st March 2025, determines a Notice of Motion dated 28th November 2024 brought by Kennedy Muthini, the Respondent/Applicant, under Sections 1A, 1B, 3, 3A, 3B and 63(e) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The dispute is an appeal against a lower court judgment of 11th October 2019 which ordered specific performance - transfer of Plot No. Kilifi/Mtwapa/1765 - after the appellant received the purchase price but refused to transfer the property. A decree was issued on 26th February 2020 and registered against the title, but instead of handing over the plot the appellant rented it to one Rosenelly Injeni and collected rent, defying court orders of 8th February 2023 (directing handover pending appeal) and 8th February 2024 (dismissing review). The applicant sought an order that all rent collected from the suit property be deposited into a joint interest-earning account in the names of the parties' advocates, plus costs. The court framed two issues: whether to deposit gross, net or no rent, and who should bear costs. Finding the application meritorious, the court held that while the building would remain intact and appreciate pending appeal, the rental income had to be secured for the respondent if the appeal failed. The application was allowed as pleaded, and the court ordered deposit of all rent collected into a joint interest-earning escrow account in the names of the parties' advocates, with a mention on 29th April 2025 for directions on the appeal. Despite the applicant's prayer for costs, the court exercised its discretion under Section 27 of the Civil Procedure Act and made no orders as to costs, relying on Mulla, Kuloba and Morgan Air Cargo Ltd v Everest Enterprises Ltd.

Key legal issues

#
01

Preservation of rental income from suit property pending appeal

Holding

The application was meritorious and the rent collected from the suit property must be deposited into a joint interest-earning escrow account in the names of the parties' advocates, so the respondent does not lose the rental income if the appeal fails

Reasoning

The lower court decreed specific performance in the applicant's favour and the decree was registered against the title, yet the appellant rented the property out and collected rent despite court orders of 8 February 2023 and 8 February 2024 directing handover. The building itself would remain intact and appreciate pending appeal, but the rental income had to be secured to protect the respondent should the appeal fail. The court found the application meritorious and allowed it as pleaded.

p. 4
02

Costs of the application

Holding

No orders as to costs were made, the court exercising its discretion under Section 27 of the Civil Procedure Act

Reasoning

Section 27(1) of the Civil Procedure Act vests discretion in the court; costs ordinarily follow the event unless the court for good reason orders otherwise. Relying on Mulla and Kuloba, and on Morgan Air Cargo Ltd v Everest Enterprises Ltd, the court noted the discretion depends on the circumstances of each case, and declined to award costs.

p. 4

Legal principles established

#
  • Costs follow the event unless the court, for good reasons, orders otherwise; the award of costs is at the discretion of the court
  • In exercising the discretion on costs, courts must consider not only the outcome but the circumstances of each case

Court orders

#
  1. 1.The Notice of Motion application dated 28th November, 2024 is allowed as pleaded
  2. 2.All the rent collected from the suit property be deposited in a joint interest earning Escrow bank account in the names of the advocates representing the parties - Messers. Munyithya, Mutugi, Umara & Muzna Company Advocates and Messrs. Gikandi Gibuini & Company Advocates
  3. 3.The matter to be mentioned on 29th April, 2025 before Hon. Justice Olola for direction on how to dispose of the impugned Appeal
  4. 4.There shall be no orders as to costs
On appeal from
Lower court (magistrates' court)
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 3B and 63(e) of the Civil Procedure Act, Cap. 21 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, in the Court's appellate jurisdiction from the lower court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Gichengo v Ndiva (Environment and Land Appeal 66 of 2021) [2025] KEELC 1483 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1483/eng@2025-03-21

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