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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether to deposit in court the gross or net rent or no rent at all
- 2.Who will bear the costs of the Notice of Motion application dated 28th November, 2024
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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
Relief refused
#Costs of the application
The court held the right not to award any costs despite the applicant having sought costs
Costs
There shall be no orders as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That an order be and is hereby made that 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 herein
That the Notice of Motion application dated 28th November, 2024 be and is hereby allowed as pleaded.
That there shall be no orders as to costs.
However, the rental income had to be secured so that if the Appeal fails, then the Respondent would not lose out on the rental income.
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or Judge shall for good reason otherwise order.
Issues in the judgment
#Party designations are internally inconsistent: the applicant is called 'Respondent/Applicant' while the other party is 'Appellant/Respondent', and the ruling at one point says the order of 8 February 2023 directed 'the Respondent' to hand over the suit property when the quoted ruling itself directed the Respondent to take possession
The court framed three issues but listed only two in its determination
The judgment records that the written submissions could not be accessed yet the ruling refers to 'the myriad of cases cited herein by parties'
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.