[2005] KEHC 1509 (KLR)
The court found that the plaintiff had established a prima facie case that the landlord-tenant relationship had ceased due to the transfer of the property to a third party and that the defendants' title to the property was in question. In the absence of opposition from the defendants, and given the evidence...
Source-derived case information.
- Citation
- [2005] KEHC 1509 (KLR)
- Parties
- Plaintiff: Complete Video Ltd; Defendant: Joseph Stephen Muriu; Defendant: Wamatu Njoroge (sued as joint administrator of the Estate of Stephen Flavian Mwangi)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 304 of 2005
- Procedural Posture
- Civil Case / Interlocutory Application (chamber Summons) for Injunction
- Outcome
- interlocutory injunction granted
- Legal Topics
- Injunctive Relief, Distress for Rent, Landlord Tenant Disputes, Title to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Complete Video Ltd
Plaintiff
Joseph Stephen Muriu
Defendant
Wamatu Njoroge (sued as joint administrator of the Estate of Stephen Flavian Mwangi)
Defendant
Procedural Posture
Civil Case / Interlocutory Application (chamber Summons) for Injunction
Legal Issues
- 1 Whether the defendants should be restrained from levying distress for rent on the plaintiff's assets pending determination of the suit.
- 2 Whether the landlord-tenant relationship had ceased due to transfer of the suit property to a third party.
- 3 Whether the distress for rent was unlawful and unprocedural.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case that the landlord-tenant relationship had ceased due to the transfer of the property to a third party and that the defendants' title to the property was in question. In the absence of opposition from the defendants, and given the evidence presented by the plaintiff, the court held that it was just and equitable to grant an injunction restraining the defendants from levying distress for rent on the plaintiff's assets pending the hearing and determination of the suit.
Court Disposition
interlocutory injunction granted
Orders
- The defendants, their servants, and agents, including M/S Cash Crop Auctioneers, are restrained from seizing, advertising for sale, or selling the plaintiff’s assets proclaimed on 28th January 2005, or otherwise proceeding with levying of distress and/or further distress for rent allegedly due, pending the hearing...
- Costs in the cause.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGHC OURT OF KENYA AT NAIROBI Civil Case 304 of 2005
COMPLETE VIDEO LTD……………………………..…….PLAINTIFF
VERSUS
JOSEPH STEPHEN MURIU
WAMATU NJOROGE(sued as joint administrator
of the Estate of Stephen Flavian Mwangi……………..…DEFENDANT
RULING
The plaintiff by way of this Chamber Summons expressed to be brought under Order XXXIX Rule 12, 3 and 9 of the Civil Procedure Rules and Section 3 of the Distress for Rent Act Cap 293 and Section 3A Civil Procedure Act seeks orders that the Defendants by themselves, and/or their servants and/or their agents and in particular M/S Cash Crop Auctioneers be restrained from seizing and/or advertising for sale and/or selling the plaintiff’s assets proclaimed on 28th January 2005 in any manner whatsoever proceeding with levying of distress and/or further distress for rent allegedly due pending the hearing and final determination of this suit.
The application is premised on the grounds that the plaintiff has reason to believe that the Defendants title to the said property is fraudulent and in any case the same has been transferred to a third party prior to the date of proclamation and thus the landlord – Tenant relationship between the parties thereto had ceased.
Thus the alleged distress for rent was unlawful and unprocedural. The application is supported by sworn affidavit of Stephen Paul Price who has deponed among others that since the Lease Agreement was entered into he has discovered that suit property had a questionable title and that the suit property had been transferred to a third party and decided to stop payment of rent and deposit the payable rent to in an account until the hearing is found or until the hearing and determination of this suit.
Counsel for the applicant submitted that since the respondent did not have legal title to the premises the purported lease was illegal. Secondly that since the premises had been transferred, the landlord – tenant relationship ceased and therefore the levying of distress for rent was unlawful.
The respondent did not attend to oppose the application although the date was taken in court in the presence of both counsels.
The application is allowed in terms of prayer 2 until the hearing and determination of the suit. Costs in the cause. Dated this 23rd day of June 2005.
J.L.A. OSIEMO
JUDGE