Gichengo v Ndiva (Environment and Land Appeal 66 of 2021) [2025] KEELC 1483 (KLR)
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
#Key legal issues
#Preservation of rental income from suit property pending appeal
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
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.
Costs of the application
No orders as to costs were made, the court exercising its discretion under Section 27 of the Civil Procedure Act
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.
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.The Notice of Motion application dated 28th November, 2024 is allowed as pleaded
- 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.The matter to be mentioned on 29th April, 2025 before Hon. Justice Olola for direction on how to dispose of the impugned Appeal
- 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.