[2021] KEELC 3952 (KLR)
The court found that the applicant had demonstrated merit in the application, as the 1st defendant had failed to comply with previous orders regarding the deposit and accounting of rental income from the suit property. The inability to trace the former advocate and the lack of opposition from the current advocate on...
Source-derived case information.
- Citation
- [2021] KEELC 3952 (KLR)
- Parties
- Applicant: Mary Awino Kweyu; Respondent: Lawrence Mmata Chore; Respondent: Melisa Muhonja Mmata
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 4 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Preservation and Accounting of Rental Income
- Outcome
- Application allowed; preservation and accounting orders granted.
- Judges
- NA Matheka
- Legal Topics
- Interlocutory Injunctions, Account of Rental Income, Preservation of Property, Advocate Client Accounts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Awino Kweyu
Applicant
Lawrence Mmata Chore
Respondent
Melisa Muhonja Mmata
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Preservation and Accounting of Rental Income
Legal Issues
- 1 Whether the 1st defendant should be compelled to deposit all rental income from the suit property into court pending determination of the suit.
- 2 Whether the 1st defendant should provide a full and accurate account of all rental income received from the suit property since the previous court order.
- 3 Whether the sum of Ksh. 2,500,000 previously deposited with the former advocate should be surrendered to the court.
Ratio Decidendi
The court found that the applicant had demonstrated merit in the application, as the 1st defendant had failed to comply with previous orders regarding the deposit and accounting of rental income from the suit property. The inability to trace the former advocate and the lack of opposition from the current advocate on record further supported the need for the court to intervene to preserve the subject matter of the dispute. The court exercised its inherent powers under the Civil Procedure Act and relevant rules to order the 1st defendant to deposit all rental income into court, provide a full account of all rental income received since the prior order, and to ensure that the funds...
Court Disposition
Application allowed; preservation and accounting orders granted.
Orders
- The 1st defendant is ordered to deposit all monthly rental income from land parcel Butsotso/Shikoti/17938 into the court's account pending determination of the suit or further orders.
- The 1st defendant is ordered to produce and serve a full and accurate account of all rental income received from the suit property since 4th July, 2019 for certification by the court.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAKAMEGA
ELC CASE NO. 4 OF 2019
MARY AWINO KWEYU...............................................................PLAINTIFF/APPLICANT
VERSUS
LAWRENCE MMATA CHORE
MELISA MUHONJA MMATA.............................................DEFENDANT/RESPONDENTS
RULING
This application is dated 17th December 2020 and is brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules, 2010 seeking the following orders;
1. That further to order made in the ELC Case No. 81 of 2018 by this honourable court on 4th July, 2019, and more specifically the order numbered “5”, the 1st defendant be ordered to henceforth have all monthly rental income derived from the land parcel number Butsotso/Shikoti/17938 and/or collected or received from tenants occupying the apartments thereon be deposited into this court’s account so as to be held therein pending determination of this suit or further orders of this court.
2. That the 1st defendant be ordered to produce to this court and also serve upon the applicant herein a full and accurate account of all the rental income that has so far been derived from the land parcel number Butsotso/Shikoti/17938 and/or collected or received from the tenants occupying the apartments thereon as from the date of issuance of the order given by this honourable court in the ELC Case No. 81 of 2018 on 4th July, 2019 up to date for certification by this court.
3. That the 1st defendant be ordered to have all the total rental income as shall have been certified by this court as having been derived from the land parcel number Butsotso/Shikoti/17938 and/or as having been received or collected from the tenants occupying the apartments thereon as from the date of issuance of the order given by this honourable court in the ELC Case No. 81 of 2018 on 4th July, 2019 upto date be deposited into this court’s account so as to be held therein pending determination of this suit or further orders of this court.
4. That Mr. Onganda Arnold (of LSK Practice Number P.105/2043/90 and who trades as Onganda & Associates) be ordered to appear before this honourable court on a date to be fixed by the court with a view to show cause, if any, why he should not be ordered to surrender or deposit into this court’s account the sum of Ksh. 2,500,000/= that had earlier been deposited by the 1st defendant into the Onganda & Associate’s account No. 078000044176 at Family Bank Limited on 10th January, 2019 as stated in the order given by this honourable court in the ELC Case No. 81 of 2018 on 4th July, 2019; and in default of him appearing before this honourable court and/or showing proper cause to the satisfaction of this honourable court, execution to issue against him for the recovery of the said sum of Ksh. 2,500,000/=.
5. That the 1st defendant herein to bear the costs of this application.
It is based upon the following grounds that on 4th July, 2019 this honourable court made a ruling that the sum of Ksh. 2,500,000/= deposited by the 1st defendant to Onganda & Associates’ bank account No. 078000044176 at Family Bank Limited on 10th January, 2019 be transferred forthwith to a joint interest earning account to be opened by and in the names of the 1st and 2nd defendants’ advocates on record as well as subsequent monthly rental income from the suit property and be held in such account pending determination of the suits or further orders of the court. That for virtually the entire period that the law firm of Onganda & Associates had been on record in this suit for the 1st defendant, it was the learned counsel Mr. Oscar Wachilonga Munyendo who appeared in court to hold brief for Mr. Onganda Arnold. There was no moment when the said Mr. Onganda Arnold, a substantive advocate in the aforesaid law firm, appeared in court in person in regard to this suit hence the inference that there was a lasting arrangement and constant communication between the two counsels, Mr. Oscar and Mr. Arnold, in regard to the handling of this suit. On 8th July, 2019 the 1st defendant sought to remove the law firm of Onganda & Associates from the records by filing his Notice of Intention to Act in Person dated 8th July, 2019. That now the said Mr. Oscar Wachilonga Munyendo has come on record for the 1st defendant. That the applicant has not been able to trace the said Onganda & Associates to know the status of the account.
This court has considered the application and the submissions therein. It is clear that a new advocate has come on record for the 1st defendant. It is the applicant’s contention that they cannot now trace Onganda & Associates to know the status of the account which is joint. This application has not been opposed by the new advocate on record. I find that same is merited and I grant the following orders;
1. That further to order made in the ELC Case No. 81 of 2018 by this honourable court on 4th July, 2019, and more specifically the order numbered “5”, the 1st defendant be ordered to henceforth have all monthly rental income derived from the land parcel number Butsotso/Shikoti/17938 and/or collected or received from tenants occupying the apartments thereon be deposited into this court’s account so as to be held therein pending determination of this suit or further orders of this court.
2. That the 1st defendant be ordered to produce to this court and also serve upon the applicant herein a full and accurate account of all the rental income that has so far been derived from the land parcel number Butsotso/Shikoti/17938 and/or collected or received from the tenants occupying the apartments thereon as from the date of issuance of the order given by this honourable court in the ELC Case No. 81 of 2018 on 4th July, 2019 up to date for certification by this court.
3. That the 1st defendant be ordered to have all the total rental income as shall have been certified by this court as having been derived from the land parcel number Butsotso/Shikoti/17938 and/or as having been received or collected from the tenants occupying the apartments thereon as from the date of issuance of the order given by this honourable court in the ELC Case No. 81 of 2018 on 4th July, 2019 upto date be deposited into this court’s account so as to be held therein pending determination of this suit or further orders of this court.
4. Cost to be in the cause.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 24TH MARCH 2021.
N.A. MATHEKA
JUDGE