Kabiro v Jerotich [2026] KEELC 5489 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT ELDORET (Coram: C.N. Ondieki, J.) ELCLA NUMBER E030 OF 2025

BETWEEN

JENNIFFER

WAIRIMU KABIRO…………………..APPELLANT/APPLICANT

AND

EVERLYNE JEROTICH……………………………………………..RESPONDENT (Being an Application for a joint inspection of the rental premises situate in Kaptagat/Kaptagat/Block 1 (Misoi)/260 (the suit property); and a true and accurate accounts of rental income from the suit property pending hearing and determination of the Appeal against the Ruling and Order of the Magistrates’ Court at Eldoret dated 23rd May 2025, by Hon. Cheronoh Kesse, PM, in Everlyne Jerotich vs. Jennifer Wairimu Kabiro; MCELC No. E002 of 2025)

RULING PART I: INTRODUCTION (1) This Application - dated 10th June 2026 - was apparently triggered by the alleged accounting gap emerging from execution of and compliance with the Order which was issued by my learned senior brother Washe, J. on 28th January 2026 to the effect “All rental income from the commercial building be deposited in Court during the pendency of this Appeal” in respect to the rental premises situate in Kaptagat/Kaptagat/Block 1 (Misoi)/260 (hereinafter “the suit property”). (2) The bone of contention, going by Applicant’s averment, is that as at November 2024 the suit property comprised 8 residential tenants generating a monthly rental income of Kshs. 74,000, exclusive of a larger residential house erected on the suit property which generated monthly rent of Kshs. 25,000 and is not reflected in the tenancy agreement. The Applicant complains that despite the said rental income, the Respondent has only been remitting a paltry Kshs. 20,000 to Court since January 2026, notwithstanding the Page 1 of 17 Eldoret ELCLA Number E030 of 2025 – CNO (R) continued occupation of the suit property by tenants who pay more than what is remitted to Court. The Applicant takes a position that her Application raises a legitimate concern as to the actual rental income being collected from the suit property, even as parties await hearing and determination of the Appeal. PART II:

THE APPELLANT/APPLICANT’S CASE (3) On 10th June 2026, the Applicant filed a Notice of Motion – expressed to be made pursuant to Order 51 Rule 1 of the Civil Procedure Rules (hereinafter ‘the CPR’); Section 1A, 1B, 3A, 79 & 95 of the Civil Procedure Act (hereinafter ‘the CPA) - in which the Applicant seeks the following orders that: (i) Spent. (ii) This Honourable Court be pleased to order a joint inspection and visit to the suit property by the parties herein, their advocates and/or agents for purpose of ascertaining the number of tenants occupying the suit premises and the rental income being generated therefrom. (iii) This Honourable Court be pleased to grant the parties herein unrestricted access to visit and inspect the suit property at reasonable times pending the hearing and determination of the Appeal. (iv) This Honourable Court be pleased to direct the Respondent to render a true and accurate account of all rent and other income collected from the suit property from January 2026 to May 2026 pending the hearing and determination of this Application. (v) This Honourable Court be pleased to direct the Respondent to render a true and accurate account of all rent and other income collected from the suit property from January 2026 to May 2026 pending the hearing and determination of the Appeal. (vi) The Honourable Court be pleased to direct the Respondent to deposit in Court

all rent collected from the suit property in strict compliance with the Orders of this Honourable Court. (vii) In default of the compliance, such further orders do issue as this Honourable Court may deem fit and just Page 2 of 17 Eldoret ELCLA Number E030 of 2025 – CNO (R) for the preservation of the suit property and the income generated therefrom. (viii) Costs of this Application be provided for. (4) The Application is predicated on the grounds advanced on the face of the said Notice of Motion and facts deponed in the Supporting Affidavit in support of the Motion, sworn on 10th June 2026. (5) On the face of the Notice of Motion, it is averred that on 28th January 2026, the ELC directed that rent from the suit property be deposited in Court pending the hearing and determination of the Appeal. It is averred that as at November 2024, the suit property comprised of 8 tenants and generated a monthly of Kshs. 74,000, exclusive of a larger residential house erected on the suit property which fetched a monthly rent of Kshs. 25,000 and which is not reflected in the tenancy agreement. It is further averred that since January 2026, the Respondent has only remitted Kshs. 20,000 to Court despite the suit property remaining occupied by tenants and in the circumstance, the Respondent has failed to account for the balance of the rental income collected from the suit property. It is

stated that the substantial reduction in the sums deposited in Court raises legitimate concerns as to the actual rental income being collected from the suit property and the Respondent’s compliance with the Courts Orders. It is averred that the Applicant has been denied access to the suit property and is therefore unable to independently verify the number of tenants in occupation and the rent collected. It is averred that it is in the interest of justice that the actual status of the suit property, the number of tenants therein and rental income generated be ascertained through a joint inspection. It is further averred that unless the orders sought are granted, the said Applicant stands to suffer prejudice through continued non-disclosure and possible misappropriation of rental income. (6) In the said Supporting Affidavit, the facts averred in the Notice of Motion are largely rehashed and a Copy of the Lease Agreements have exhibited marked JWK-1. (7) In her written submissions dated 17th June 2026 and filed on even date, learned Counsel Ms. Wanjohi, instructed by the Firm of Messieurs Pharis and Co. Advocates, rehashed the substance of the Application. Learned counsel proposed three questions for determination as follows: (i) Whether this Honourable Court has Jurisdiction to grant the orders sought; Page 3 of 17 Eldoret ELCLA Number E030 of 2025 – CNO (R) (ii) Whether the

Applicant has established a basis for the orders sought; and (iii) Who should bear the costs of this Application. (8) Regarding the question of jurisdiction, it is submitted that this Court is vested with wide discretionary power under sections 1A, 1B and 3A of the CPA, to make such orders as may be necessary for the ends of justice and to prevent abuse of the Court process. Further, it is argued that this Court retains inherent power to preserve not only the suit property but also the income and proceeds arising therefrom pending the determination of the Appeal. It is urged that the orders sought do not determine the Appeal as they merely facilitate compliance with the Court order issued on 28th January 2026 and ensure the preservation and proper management of income generated from the suit property pending the final determination of the Appeal. (9) Regarding the question whether the Applicant has established a basis for the orders sought, it is urged that the Honourable Court already directed that the rent collected from the suit property be deposited in Court pending the determination of the Appeal and the said purpose of that order was to preserve the income generated from the property and to ensure that neither party derives an unfair advantage during the pendency of the Appeal. (10) The Applicant further submits she has met the conditions for grant of interlocutory injunction laid down in Giella vs. Cassman Brown & Co, Limited (1973) E.A.

358. The Applicant further submitted that they have provided proof that as at November 2024, the suit property comprised several rental units generating a total of Kshs. 99,000 and despite the continued occupation of the premises by tenants, only Kshs. 20,000 has been deposited in Court since January 2026. In addition, it is further submitted that through the lease agreements provided to the Honourable Court, the Applicant submits that they have demonstrated reasonable apprehension that the Respondent is not rendering the total income generated from the suit property and as such the Respondent may not be able account for the rental income fully unless this Honourable Court intervenes. (11) In closing, the Applicant contends that she has fully demonstrated that she stands to suffer irreparable harm as the Respondent may continue to mismanage the rental income from the suit property and therefore the Applicant is of the view that the Page 4 of 17 Eldoret ELCLA Number E030 of 2025 – CNO (R) balance of convenience tilts heavily in favour of the said orders sought in the Notice of Motion dated 10th June 2026. (12) Finally, regarding costs, it is urged that the Application dated 10th June 2026 should be allowed with costs to the Applicant. PART III: RESPONDENT’S CASE (13) The Application is opposed by the Respondent. (14) In her Replying Affidavit dated 16th June 2026 and filed on

the even date, the Respondent has deposed that she vehemently denies that the orders sought are necessary and the Applicant has conveniently ignored the fact that she is complying with the said Court order dated 28th January 2026, by depositing Kshs. 20,000 monthly. (15) It is deposed that the Applicant’s claim that there is a Kshs. 25,000 unit which is unaccounted for is unsubstantiated since the main residential house on the property fetches a monthly rent of Kshs. 20,000. It is deposed by the Respondent that prior to the Respondent taking over the management of the suit property, the Applicant was the one collecting rent from the tenants and that the Applicant is therefore familiar with the rental income the property generates but she is now feigning ignorance. It is deposed that the Applicant still holds the tenants’ deposits whose lease Agreements she annexed to her Supporting Affidavit and that the said deposits should form part of the estate’s assets. Besides, it is deposed that the lease agreements which have been exhibited by the Applicant do not support the claim of Kshs. 74,000 monthly rental income. It is deposed in this connection that the Respondent did demonstrate, by way of tabulation, the true position of the suit property as at June 2026. In further connection to this, it is deposed that only part of the units are occupied and the tenants in occupation have

not yet paid any rent as their first payment was applied towards renovations of the units. It is further deposed that the Applicant’s claim of Kshs. 10,000 unit is also false. It is deposed that the Lease Agreements exhibited by the Applicant are for 2024 and yet the Applicant has failed to disclose to this Court that the vast majority of those tenants have since vacated the premises. In addition, it is deposed that the tenants usually leave once they get hold of information that the suit property is a subject of a contested succession dispute, since the uncertainty surrounding ownership of the suit property causes significant instability of the number of tenants. It is thus deposed that Applicant's claim that the property has been generating Kshs. 74,000 monthly is therefore completely false since 2024 data is historical and does not reflect the current reality. In this context, it is deposed that the Applicant is attempting to mislead this Court by Page 5 of 17 Eldoret ELCLA Number E030 of 2025 – CNO (R) relying on outdated information to suggest that the Respondent is concealing income. Further, the Respondent deposes that the Applicant failed to disclose that part of the rental income is applied towards expenses including the caretaker; garbage collection; water bills; maintenance and repairs. In this connection, the Respondent deposes that she is fully compliant with the

Court's order to deposit rent and that the Kshs. 20,000 is a reasonable amount representing the net income after expenses. The Respondent deposes that the Applicant's request for a joint inspection of the suit property is a ‘fishing expedition’ designed to harass the Respondent and disrupt the peaceful occupation of the remaining tenants. In addition, it is deponed that the Applicant has not provided any evidence for a breach of the deposit order; rather, she is attempting to use the Court process to gain access to the property for reasons unrelated to the Appeal. Further, it is deponed that that the Respondent has not denied the Applicant access since the Court issued an order that neither the Applicant nor the Respondent should occupy the said property and, in this relation, she has never made a request or liaised with the Respondent on visiting the suit property. Lastly it is deponed, that the Respondent has made transparent disclosure of all income and expenses and the Applicant's request for a joint inspection is unnecessary and prejudicial and that this Court has laid a mechanism in place to secure the rental income, and the Applicant has presented no evidence of non-compliance. (16) In her written submissions dated 30th June 2026 learned Counsel, Ms. Tallam, instructed by the Firm of Messieurs Kimaru Kimtai Advocates LLP, representing the Respondent rehashed the

contents of the Replying Affidavit and outlined four issues for determination: (i) whether this Honourable Court has jurisdiction to grant the orders sought; (ii) whether the Applicant has established a basis for the grant of the orders sought; (iii) whether the Applicant has established a basis for the additional supervisory orders sought; and (iv) whether the Applicant is entitled to the equitable reliefs she seeks. (17) In regarding to the question whether this Honourable Court has Jurisdiction to grant the Orders sought, it is urged that this being a first appellate Court, whose role is to determine the corrections of the Rulings and Orders of the Magistrates’ Court Page 6 of 17 Eldoret ELCLA Number E030 of 2025 – CNO (R) delivered on the 23rd May 2025 and that the day-to-day management of the suit property, including joint inspection, access to the premises, and verification of the status of the tenancies falls within the Jurisdiction of the trial Court which remains seized of the substantive suit and it is best placed to make , enforce and supervise such mandate. In addition, it is the view of the Respondent that granting the orders sought would effectively require the Court to assume supervisory role over the management of the suit property suit property, thereby micro-managing matters that properly belong to the supervisory Court, and to support this proposition, Mbogo

& Another v Shah [1968], [sic], is cited for the holding that an appellate Court should not interfere with the exercise of a trial Court discretion unless it is satisfied that the Court misdirected itself in law, took into account matters it ought not to have considered, failed to take into account relevant matters, or that its decision is plainly wrong. (18) Concerning the question whether the Applicant has established a basis for the grant of the orders sought, it is answered in the affirmative has failed to establish any legal or factual basis for the orders sought. It is submitted that conditions in Giella v Cassman Brown & Co. Ltd, [sic], are limited to Applications seeking interlocutory injunctions pending trial but in this Application, the Applicant seeks substantive, mandatory and supervisory orders for the inspection of the suit property, unrestricted access to the premises, accounting for rental income and directions on the management of the property pending the determination of the Appeal all of which lack a proper basis arguing that the existing order requiring the deposit of rental income is sufficient. Besides, it is argued that the Applicant has failed to demonstrate any prejudice occasioned to the Applicant and that in any event, the joint inspection would interfere with the tenants who are not parties to the suit and place the Honourable Court in the position

of supervising the day-to-day management of the suit property. (19) In respect to the question whether the Applicant has established a basis for additional supervisory orders sought, it is urged that the Applicant seeks orders compelling the Respondent to render a further account of the rental income, permit a joint inspection of the suit property, grant access thereto, and deposit all rental proceeds in Court, the Respondent is of the view that the said Applicant has not established a proper basis for the orders sought. The Respondent further submits that they have substantially complied with the subsisting Court orders and the Applicant has acknowledged that the Respondent has been remitting a monthly sum as per the Couts direction and the prayers Page 7 of 17 Eldoret ELCLA Number E030 of 2025 – CNO (R) for a joint inspection are equally without merit. The Respondent placed reliance upon Lengeny & 15 Others v Nyauma [2023] KEELC 15658, for the proposition that a Court of law should not allow a party to use its process as a fishing expedition. (20) Lastly, regarding the question whether the said Applicant is entitled to the equitable reliefs sought, it is urged that the Applicant’s case proceeds on historical lease agreements and assumptions regarding the current rental income without any current documentary evidence to support those assertions. It is argued in this connection

that the Applicant has failed to disclose material facts that the Respondent has placed before the Court and that the property went through a period of vacancies, that some units were only recently occupied, that the main house tenant is presently in arrears, and that the Respondent continues to bear real maintenance and utility costs. It is submitted that these facts tend to affect the income presently available and should not be ignored when asking the Court to exercise its equitable jurisdiction and that despite consistently complying with the order of the Court by depositing Kshs. 20,000 every month, the Applicant is misleading the Court to conclude that the Respondent is hiding income without placing before the Court any evidence capable of disproving the Respondent account. It is thus concluded that the Applicant has failed to place before the Honourable Court sufficient material to justify the exercise of its equitable discretion. PART IV: QUESTIONS FOR DETERMINATION (21) Commending themselves for determination - gleaning from the said Notice of Motion; the Replying Affidavit; and the rival written submissions - are three questions as follows: (i) Whether this Court has jurisdiction to hear and determine this Application. (ii) Whether the Applicant has established sound legal grounds to warrant grant of the orders sought. (iii) Which party should bear the costs of this

Application? PART V: ANALYSIS AND DETERMINATION (i) Whether this Court has jurisdiction to hear and determine this Application (22) There is no universally accepted definition of jurisdiction. Broadly speaking, jurisdiction is the authority or power granted to a formally Page 8 of 17 Eldoret ELCLA Number E030 of 2025 – CNO (R) constituted legal body to deal with and make pronouncements on legal matters and by implication to administer justice within a defined area of responsibility. In the context of Kenya, jurisdiction of a Court is the authority or power granted to a Court to admit, consider and determine a legal matter on an area of responsibility defined by the Constitution and/or Act of Parliament and more particularly, the power reposed in a Court to interpret and apply the laws contemplated by Article 2 of the Constitution of Kenya and those set out under section 3 of the Judicature Act. See the locus classicus on this subject namely the Court of Appeal decision in Owners of Motor Vessel “Lillian S” vs. Caltex Oil (K) Ltd [1989] KLR 1, per Nyarangi, JA (as he then was). (23) Jurisdiction is not a mere procedural technicality. It flows from either the Constitution or legislation or both. See the Supreme Court decisions in Samuel Kamau Macharia vs. Kenya Commercial Bank Ltd & 2 Others [2012] eKLR; and In the Matter of Interim Independent Electoral Commission [2011]

eKLR. (24) Since Jurisdiction is everything, the Court must inquire into its jurisdiction before Judgement is rendered. Without it, a Court has no power to make one more step and should instead down tools in respect of the matter before it, the moment it holds the view that it lacks it. See the said Owners of Motor Vessel “Lillian S” case. (25) Article 2(2) of the Constitution provides that no person may claim or exercise State authority except as authorised under this Constitution. In the foregoing context, Courts and other public bodies should work within the powers expressly conferred either by statute or legislation of both, but not by implication. Power should not be expanded through judicial craft. See Geoffrey K. Sang vs. Director of Public Prosecutions & 4 others [2020] eKLR, per Odunga, J. (as he then was); Chogley vs. The East African Bakery [1953] 26 KLR 31 at 33 and 34; Re: Hebtulla Properties Ltd. [1979] KLR 96; [1976-80] 1 KLR 1195; Warburton vs. Loveland [1831] 2 DOW & CL. (HL) at 489; Lall vs. Jeypee Investments Ltd [1972] EA 512 at 516; Attorney General vs. Prince Augustus of Hanover [1957] AC 436 AT 461; Republic vs. Kenya Revenue Authority Ex Parte Aberdare Freight Services Ltd & 2 Others [2004] 2 KLR 530; Re Hardial Singh and Others [1979] KLR 18; [1976-80] 1 KLR 1090, et alia. (26) Turning to statute law, section 63 of the CPA provides that “In order to

prevent the ends of justice from being defeated, the Court may, if it is so prescribed — (a) issue a warrant to arrest the defendant and bring him before the Court to show Page 9 of 17 Eldoret ELCLA Number E030 of 2025 – CNO (R) cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to prison; (b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property; (c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to prison and order that his property be attached and sold; (d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property; (e) make such other interlocutory orders as may appear to the Court to be just and convenient.” {Emphasis supplied} (27) Whereas I concur with learned counsel for the Respondent that this being a first appellate Court, it does not have any business handling questions reserved for the trial Court, I must observe that this Court would have been devoid of jurisdiction but for the Order which was issued by my learned senior brother Washe, J. issued on 28th January 2026, to the effect that rent from the suit property be remitted and deposited in Court pending hearing

and determination of the Appeal, on which foundation this Application is anchored. Since this Application was apparently triggered by the alleged accounting gap emerging from execution of and compliance with the said Order, and since the bone of contention is an issue emerging from the said Order, on whether there is full or token compliance with the said order which is further founded on the accounting gap emerging from execution of and compliance with the Order which was issued by my learned brother, this Court is reposed with jurisdiction to receive and consider supplemental proceedings by dint of section 63 (b) & (e) of the CPA [to consider whether it will prevent the ends of justice from being defeated by directing the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property; and/or (e) make such other interlocutory orders as may appear to the Court to be just and convenient]. (28) On basis of the foregoing, I conclude that this Court has jurisdiction to hear and determine this Application. (ii) Whether the Applicant has established sound legal grounds to warrant grant of the orders sought (29) Having found that this Court is properly seized of the matter and has jurisdiction to entertain the Application and grant appropriate interlocutory and preservatory relief, the

next question is whether Page 10 of 17 Eldoret ELCLA Number E030 of 2025 – CNO (R) the Applicant has placed before the Court sufficient material to warrant the exercise of that jurisdiction in her favour. (30) In order to answer this question conclusively, this Court is enjoined to inquire whether the interlocutory orders sought are necessary to prevent the ends of justice from being defeated, consistent with section 63 of the CPA. (31) This Court is further enjoined to inquire the counter-narrative by the Respondent whether the interlocutory orders sought by the Appellant/Applicant amount to a fishing expedition. (32) It is instructive to open the discussion with the purpose served by a preservation order, which was issued by my learned brother. Section 63 of the CPA makes provision for supplemental proceedings, in civil proceedings primarily to prevent the ends of justice from being defeated. One of such supplemental proceedings is a preservation order housed in section 63 (b) and (e) of the CPA which provides that “In order to prevent the ends of justice from being defeated, the Court may, if it is so prescribed — … (b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property; … (e) make such other interlocutory orders as may appear to the Court to be just and

convenient.” {Emphasis supplied} (33) Whereas the overarching purpose of a preservation order is to prevent the ends of justice from being defeated, the specific purposes are as follows: (i) First, is to prevent the property in dispute from the danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a Decree or from removal or disposal in circumstances affording reasonable probability that the Applicant will or may be obstructed or delayed in the execution of any Decree that may be passed against the Defendant in the suit. (ii) Second, is to maintain a position that will more easily enable justice to be done when the final order of the Court is issued. (iii) Third, is to regulate the acts of the parties in a way that is the most just and convenient in all circumstances. (iv) Fourth, is to improve the chance of the Court being able to do justice after a determination of the merits at the trial. Put differently, a preservation order mitigates the risk of injustice to the Applicant during the period before that uncertainty could be resolved by protecting the Applicant against injury by violation of Page 11 of 17 Eldoret ELCLA Number E030 of 2025 – CNO (R) his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. It thus serves

justice by striking a balance of justice, as opposed to a balance of convenience. (v) Fifth, is to preserve the substratum of the suit pending the hearing and determination of the suit. (vi) Sixth, is to guarantee the right to a fair hearing and due process of the law as contemplated by Article 50(1) of the Constitution of Kenya by guaranteeing that no party to a suit will be condemned unheard by preserving the subject matter of the suit when it is in danger of being wasted, damaged, or alienated by the opponent before the Court has determined the dispute on merits. (vii) Seventh, the doctrine of lis pendens commands that while litigation is underway, nothing should change to avoid rendering the litigation an academic exercise. Put differently, while litigation is pending, status quo should be maintained. (viii) Eighth and finally, is to prevent breach of the law. (34) I discern the Application to be concerned with the accounting gap emerging from execution of and compliance with the Order which was issued by my learned brother on 28th January 2026, which only directed that “all rental income from the commercial building be deposited in Court during the pendency of this Appeal” without more. (35) Before anything, I concur with learned counsel for the Respondent that the principles and conditions laid down in Giella v Cassman Brown & Co. Ltd [1973] EA 358, are inapplicable

to this Application. (36) Contrary to the assertion by the Respondent that this Application is out on a fishing expedition, upon carefully weighing the Affidavit evidence presented by the Applicant against the affidavit evidence presented by the Respondent, on a balance of probabilities, an accounting gap has been clearly established since “all rental income from the commercial building” without more leaves the important question of accounting for the subjective. Specifically, the Court would be interested to know empirically what “all rental income from the commercial building” entails and this can only be achieved through a true and accurate account thereof from month-to-month. Page 12 of 17 Eldoret ELCLA Number E030 of 2025 – CNO (R) (37) It is for this reason that this Court finds that the Application in good faith seeks to prevent the ends of justice from being defeated by invoking the authority of this Court to deploy supplemental proceedings contemplated by section 63 (b) & (e) of the CPA, to supplement the Order which was issued by my learned senior brother Washe, J. on 28th January 2026. This Court readily takes cognizance that rental income cannot be constant every turning month, owing to multiple vicissitudes. This is an issue which should be addressed through proper month-to-month accounting until conclusion of the Appeal. However, although this Court observes that

the Respondent has been complying with the deposit order, in order to fully satisfy the eight purposes of a preservation order discussed above and since a Court order should not be issued in vain, this Court is of the persuasion that the orders sought will further ensure that neither party derives an unfair advantage during the pendency of the Appeal, by ingeniously adopting a colourable or token or cosmetic compliance. (38) I thus concur with the Applicant’s proposition that the orders sought do not determine the Appeal since they merely facilitate compliance with the Court order issued on 28th January 2026, to ensure preservation and proper management of income generated from the suit property pending the final determination of the Appeal. (39) In accord with the discretionary power reposed upon this Court by section 63 (b) & (e) of the CPA, this Court reaches a conclusion that the Applicant has established sound legal grounds to warrant grant of the orders and reliefs sought since the orders sought are just and convenient to facilitate a true and accurate account of the rental income which was contemplated in the said Order to be deposited in Court by establishing the actual status of the suit property; the number of tenants therein; the total rental income generated; and both the line and total expenses required from month-to-month in maintaining the suit property, all of

which can properly so be ascertained through a joint inspection. (iii) Which party should bear the costs of this Application? (40) The law on costs as I discern it is that first, an award of costs is discretionary. Second, save where costs and interest are compromised, the Court reserves the discretionary power to award. See Morgan Air Cargo Ltd vs. Everest Enterprises Ltd (2014) eKLR, Gikonyo, J. Third, even where a suit has been compromised without including costs in the compromise, the discretion of the Court aforesaid remains unscathed. See Rose Kaume & Another vs. Stephen Gitonga Mbaabu & Another [2016] eKLR, per C. Kariuki, J. Page 13 of 17 Eldoret ELCLA Number E030 of 2025 – CNO (R) (41) How then is this discretion exercised? Discretion is not the same thing as carte blanche. Beacons demarcating how discretion is exercised are as follows: (i) First, discretion ought to be exercised with circumspection and judiciously. See Christopher Kiprotich vs. Daniel Gathua & 5 others [1976] eKLR; Mbogo and Another vs. Shah [1968] EA 93 and Mohindra vs. Mohindra (1953) 20 EACA 56. Speaking of discretion, Lord Halsbury L. C., in the case of Sharp vs. Wakefield [1891] 64 L.T Rep. 180 Ap. Ca.173 held that: “When it is said that something is to be done within the discretion of the authorities, that thing is to be done according to the rules of reason and justice, not according to private

opinion, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular. It must be exercised within the limit to which an honest man, competent to the discharge of his office, ought to confine himself.” In Rooke’s case, 5 Rep. 99b (1598), adverted to in approval by Mativo, J. in Republic vs. Public Procurement Administrative Review Board & 2 others [2018] eKLR, the Court attempted a definition of discretion as follows: “Discretion is a science, not to act arbitrarily according to men’s will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the Constitution entrusted with.” (ii) Second, costs follow the event unless the Court finds a good cause to negate this trajectory. See Cecilia Karuru Ngayu vs. Barclays Bank of Kenya & another [2016] eKLR). In this context, the meaning ascribed to the words “costs shall follow the event” is that the party who

calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the Defendant or Respondent will bear the costs. See the seminal works of Kuloba, J. (as he then was), Judicial Hints on Civil Procedure 2nd edition at page 99; Dipchem East Africa Limited vs. Karutturi Limited (In Receivership) [2015] Page 14 of 17 Eldoret ELCLA Number E030 of 2025 – CNO (R) eKLR, per Gikonyo, J.; Cecilia Karuru Ngayu vs. Barclays Bank of Kenya & Another (2016) eKLR, per Mativo, J.; and Jasbir Singh Rai & 3 others vs. Tarcholan Singh Rai & 4 others (2014) eKLR, per Mutunga, CJ & P (as he then was) Tunoi, Ojwang and Rawal, SCJJ (as they then were) Ibrahim and Wanjala, SCJJ. (iii) Third, and closely intertwined with the second is that costs should not be used to penalize the losing party but rather to compensate the successful party for the trouble invested in the proceeding or defending the suit. See Joseph Oduor Anode vs. Kenya Red Cross Society [2012] eKLR, per Odunga, J. (iv) Fourth, and also closely connected with the second and third is that the purpose served by an award of costs is guided by the principle restitution in integrum i.e to reimburse the successful party the money expended in the case. See the SCOK decision in Jasbir Singh Rai & 3 others vs. Tarcholan Singh Rai & 4 others (2014) eKLR,

per Mutunga, CJ & P (as he then was) Tunoi, Ojwang and Rawal, SCJJ (as they then were) Ibrahim and Wanjala, SCJJ. (v) Fifth, and too connected to the second, third and fourth beacons is that a successful party should ordinarily be awarded costs unless its conduct is such that it would be denied costs or the successful issue was not attracting costs. See Orix Oil (Kenya) Ltd vs. Paul Kabeu & 2 Others (2014) eKLR; and Morgan Air Cargo Ltd vs. Everest Enterprises Ltd (2014) eKLR, Gikonyo, J. (42) Considering that the special circumstances of this Application, Court exercises its discretionary power in the direction of ordering that the costs incurred in this Application shall abide the outcome of the Appeal. PART VI: DISPOSITION (43) Wherefore this Court finds the Application meritorious and in addition to the Order of learned senior brother, Washe J., issued on 28th January 2026, orders as follows: (i) An Order is hereby issued for a joint inspection and visit to the suit property by the parties, their advocates and/or agents, and the Court Bailiff, for purpose of ascertaining the number of tenants occupying the suit premises and the rental income being generated Page 15 of 17 Eldoret ELCLA Number E030 of 2025 – CNO (R) therefrom, within a period of 15 days from the date of this Ruling. (ii) An Order is hereby issued granting the parties unrestricted access to visit and inspect

the suit property at reasonable times, pending the hearing and determination of the Appeal. (iii) An Order is hereby issued to the Respondent to render a true and accurate account of all rental income collected from the suit property from January 2026 to May 2026, pending the hearing and determination of the Appeal. (iv) An Order is hereby issued to the Respondent to render a true and accurate account on the 15th day of every month in relation to the previous calendar month, with effect from June 2026, by way of affidavit outlining the following: (a) particulars of each occupied unit; its respective rental income; and the total rental income received; (b) particulars of each un-occupied unit; its respective projected rental income; and the total projected rental income; (c) rent arrears if any; (d) both the line and total expenses incurred in maintaining the suit property and supporting evidence (including receipts, invoices, et alia); (e) the net rental income deposited in Court by the Respondent; and (f) any other material fact. (v) The Court Bailiff – who shall be part of the joint inspection under Order (i) above – in consultation with the parties and their Advocates, is directed to prepare a Report within 15 days from the date of visit, setting out the following: (a) particulars of each occupied unit; its respective rental income; and the total rental income receivable;

(b) particulars of each un-occupied unit; its respective projected rental income; and the total projected rental income; (c) rent arrears if any; (d) both the line and total expenses incurred in maintaining the suit property and supporting evidence (including receipts, invoices, et alia); (e) the amount of rental income deposited in Court by the Respondent as at the date of the Report; and (vi) any other material fact. Page 16 of 17 Eldoret ELCLA Number E030 of 2025 – CNO (R) (vi) The costs incurred towards the Court Bailiff shall be drawn from and counted as part of the expense of running the suit property, during the affected month. (vii) The costs of this Application shall abide by the outcome of the Appeal. (viii) Considering the relatively old age of this Appeal, the Appellant is directed to take expedited steps towards having it set down for Case Management Conference at the earliest, on a priority basis. Virtually Delivered, Signed and Dated in ELC Eldoret this 21st September 2026 …………….………… C.N. Ondieki Judge In the presence of: Advocate for the Appellant/Applicant: Ms. Chepkoyo for Mr. Mbugua Advocate for the Respondent: Ms. Tallam Court Assistants: Ms. Chepkoech and Ms. Juma Page 17 of 17 Eldoret ELCLA Number E030 of 2025 – CNO (R)