[2025] KEELC 74 (KLR)

Njeru v Kamau & another (Civil Appeal E102 of 2021) [2025] KEELC 74 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 74 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Civil Appeal E102 of 2021

BM Eboso, J

January 16, 2025

Between

Edith Marangu Njeru

Appellant

and

James Munyua Kamau

1st Respondent

Paul Waititu Kahuthu

2nd Respondent

Ruling

1. Falling for determination in this ruling is the respondents’ application dated 18/3/2024, through which they seek the following verbatim orders.a.This Honourable Court be pleased to order that the monthly rent deposited by the appellant/respondent to the court’s bank account as a condition for stay of execution of the decree in Ruiru Magistrates’ Environment and Land Case No. 157 of 2019 – James Munyua Kamau & another vs Edith Marigu Njeru be released to the applicant’s advocates.b.That the costs of the application be provided for.

2. The application was premised on the grounds outlined in the motion and in the supporting affidavit sworn by James Munyua Kamau. The application was canvassed through written submissions dated 2/9/2024, filed by M/s Wanjohi & Wawuda Advocates. For clarity, parties will, in this ruling, be identified by their designations in the main appeal.

3. The case of the two applicants [the two respondents in the main appeal] is that the money deposited in court pursuant to this court’s ruling of 16/3/2022 should be released to their joint advocates. They contend that the said money was rent for the premises that were occupied by the appellant. They further contend that because this appeal has been disposed, the money deposited in court should be released to their joint advocates. The 1st applicant [James Munyua Kamau] specifically contended in paragraph 3 of his supporting affidavit that the appellant “was ordered to deposit her monthly rent to the court as a condition for stay of execution of the order from the Magistrate Court which ordered that she be evicted”

4. The appellant opposed the application through a replying affidavit and written submissions dated 4/11/2024, filed by M/s Masore Nyangau & Co. Advocates. The case of the appellant is that the money deposited in court was security for costs of the appeal and was not rent. She further contends that the 1st respondent [James Munyua Kamau] having repossessed and leased out half of the original demised premises to the 2nd respondent, he is not entitled to the full rent that was originally contemplated in the lease. It is the case of the appellant that, given the above circumstances, it would be prejudicial to her were the sum of Kshs. 250,000 deposited in court to be treated as rent and released to the respondents.

5. The court has considered the application, the response to the application, and the parties’ respective submissions. The key question to be answered in this ruling is whether, at this point, the respondents in this appeal are entitled to a release, to their joint advocates, of the moneys deposited in court pursuant to this court’s ruling rendered on 16/3/2022.

6. The decision and orders of 16/3/2022 were informed by three key considerations: (i) the requirement for security under Order 42 rule 6(2) of the Civil Procedure Rules, (ii) the fact that the trial court had decreed the appellant to vacate the suit premises but the appellant wanted to continue occupying the premises pending the hearing and determination of the appeal; and (iii) the need to cushion the decree-holder against possible loss of rental income or mesne profits relating to the period subsequent to the date when the appellant was decreed to vacate the premises.

7. The court did not, however, make any order designating the deposited money as adjudged or assessed monthly rent. Such an order could not be made without evidence on the reasonable monthly rent or monthly mesne profits. It therefore follows that the sum deposited in court served and still serves as security for the ultimate decree and for any adjudged/assessed monthly rent or mesne profits covering the period subsequent to the date when the appellant was decreed to vacate the premises.

8. At this point, no certificate of costs has been exhibited to demonstrate that costs of the appeal which were awarded to the respondents have been assessed by the taxing officer. Secondly, no decree or order of any court has been exhibited in relation to any assessment of rent or mesne profits relating to the relevant post judgment period. Lastly, there is no gain-saying that the court seized of the claim for mesne profits will be expected to take into account the fact that the appellant occupied only a portion of the original demised premises.

9. It is important to point out at this point that this court exercised appellate jurisdiction. Much as the court was alive to the need to cushion the 1st respondent against loss of rental income or mesne profits, this is not the appropriate platform on which to ventilate the claim for the post-judgment loss of rental income or mesne profit. This appeal is not the appropriate platform because such a claim would require oral evidence and cross-examination in a normal trial. Suffice it to state that, the money deposited in this court will abide assessment of costs and/or assessment of mesne profits for the relevant post judgment period.

10. For the above reasons, the court comes to the finding that in the absence of a mutual consent or decree on mesne profits and in the absence of a mutual consent on costs or a duly issued certificate of taxation, the plea for release of the sum deposited in court is premature. For the above reasons, the application dated 18/3/2024 is rejected for being premature.

11. Given the circumstances giving rise to the application under consideration, parties will bear their respective costs of the application.

12. Lastly, it is clarified that the date for delivery of this ruling was reserved while the Presiding Judge was still stationed at Thika ELC. Effective from 13th January, 2025, the Judge was transferred to Meru ELC and Chuka ELC. It is for this reason that this ruling is being rendered virtually at Meru ELC. The relevant original court file shall be returned to Thika ELC forthwith and the Court Registry at Thika ELC shall upload the ruling onto the CTS immediately.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MERU THIS 16TH DAY OF JANUARY, 2025B M EBOSOJUDGEIn the Presence of:-Mr. Kasabuli for the appellantMr. Githae for respondentCourt Assistant – Mr. Tupet