[2009] KEHC 4202 (KLR)
The court found that the plaintiff had not denied the existence of rent arrears amounting to Kshs.390,000 and had failed to provide a credible proposal for payment. The receipts provided as evidence of ownership of the goods were not convincing. The court held that the plaintiff had not met the standards for the...
Source-derived case information.
- Citation
- [2009] KEHC 4202 (KLR)
- Parties
- Plaintiff: Caroline Anyango Onyango; Defendant: Jason Maingi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 311 of 2009
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Judges
- A Ali-Aroni
- Legal Topics
- Injunctive Relief, Landlord and Tenant Disputes, Distress for Rent, Equitable Remedies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caroline Anyango Onyango
Plaintiff
Jason Maingi
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from levying distress and selling household goods for rent arrears.
- 2 Whether the plaintiff has established a prima facie case with a probability of success as required for the grant of an injunction.
- 3 Whether the plaintiff will suffer irreparable injury not compensable by damages if the injunction is not granted.
Ratio Decidendi
The court found that the plaintiff had not denied the existence of rent arrears amounting to Kshs.390,000 and had failed to provide a credible proposal for payment. The receipts provided as evidence of ownership of the goods were not convincing. The court held that the plaintiff had not met the standards for the grant of an injunction as set out in Giella v Cassman Brown, specifically failing to demonstrate a prima facie case with a probability of success, irreparable injury, or that the balance of convenience was in her favour. The court concluded that the application was an attempt to use the court process to evade payment of rent, amounting to an abuse of process, and therefore...
Court Disposition
application dismissed with costs
Orders
- The application for a temporary injunction is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 311 of 2009
CAROLINE ANYANGO ONYANGO…………………..PLAINTIFF
VERSUS
JASON MAINGI…………………………………..….DEFENDANT
R U L I N G
1. Before me is an application dated 10th June, 2009 brought by the Plaintiff/Applicant by way of a Chamber Summons, under the provisions of Order 39 rule 1 and 2 of the Civil Procedure Rules and Section 3A and 63(e) of the Civil Procedure Act.
2. The application is seeking for a temporary injunction against the Defendant/Respondent from proceeding with distress and a sale of immovable properties to be found at Hse No. 236, Dam Estate Nairobi. The Plaintiff, her husband, children and other family members reside in the said premises.
3. The defendant/respondent who is the landlord objects to the said application and filed a replying affidavit dated 1st July, 2009.
4. The applicant contends that, the Lease Agreement is between her husband one Alfayo Onyango and the Defendant/respondent. Although married to the tenant, the goods subject matter herein excessively belong to her. The Plaintiff/applicant objects to the Defendant/respondent restraining the household goods in default of rent amounting to Kshs.390,000/= although, she admits that same is due and owing.
5. The Defendant/respondent on his part contends that the plaintiff/applicant and the husband both reside in the premises and that the applicant has a number of times paid the rent. The Defendant/respondent contends further that the application is an attempt to deny him his dues.
6. The levying of distress is one of the remedies available to a landlord when rent is due and owing. The Plaintiff/applicant has not denied that the defendant/respondent is owed Kshs.390,000/= in terms of rent arrears. At the time of levying distress rent for 13 months amounting to Kshs.390,000/= was outstanding.
7. An injunction is an equitable remedy and he who comes to a court of Equity must come with clean hands. Looking at the receipts annexed to the affidavit in support of ownerships of the items, the court is not convinced by the authenticity of the said receipts. Secondly the Plaintiff/applicant admits that at the time of levying distress the Defendant was owed Kshs.390,000/= rent for 1 year 1 month. No proposal is forth coming from the either Plaintiff, or the so called tenant of how these arrears and rent accruing will be paid. A court of Equity ought not to be used by one party to the detriment of the other.
8. The Plaintiff herein has failed in my view to prove to this court that she has met the standards required for granting of an injunction as set out in the case of Giella vs Cassman Brown.
8. The Plaintiff has failed to demonstrate to this court that she has a prima facie case with a probability of success, that the injury likely to be suffered cannot be compensated by way of damages, thirdly that in the absence of the two, the balance of convenience tilts to her favour. It is obvious to this court that the tenant of House No.236, Dam Estate wants to use the court to evade payment of rent. To mind this amounts to an abuse of the court process, as a result therefore, I am unable to grant the prayers sought for and dismiss the application with costs.
Dated and delivered at Nairobi this 28th day of July, 2009.
ALI-ARONI
JUDGE