[2007] KEHC 1902 (KLR)
The court found that the applicant failed to demonstrate that it was the proper party against whom the notice of distress was issued, as the notice was addressed to Crown Printers Limited and not Crown Clothing (Kenya) Ltd. The applicant did not establish a prima facie case with a probability of success, nor did it...
Source-derived case information.
- Citation
- [2007] KEHC 1902 (KLR)
- Parties
- Applicant: Crown Clothing (K) Ltd.; Respondent: Sheth Agencies (1980) Limited; Respondent: Sannex Enterprises
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 311 of 2007
- Procedural Posture
- Chamber Summons / Ruling on Interlocutory Injunction and Preliminary Objection
- Outcome
- application dismissed with costs to the respondents
- Judges
- JM Khamoni
- Legal Topics
- Interlocutory Injunctions, Preliminary Objection, Distress for Rent, Party Identity, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Crown Clothing (K) Ltd.
Applicant
Sheth Agencies (1980) Limited
Respondent
Sannex Enterprises
Respondent
Procedural Posture
Chamber Summons / Ruling on Interlocutory Injunction and Preliminary Objection
Legal Issues
- 1 Whether the applicant is entitled to a permanent injunction restraining the respondents from interfering with its property pending determination of the suit.
- 2 Whether the replying affidavit by the respondent should be expunged for being defective and incompetent.
- 3 Whether the applicant is the proper party against whom the notice of distress was issued.
Ratio Decidendi
The court found that the applicant failed to demonstrate that it was the proper party against whom the notice of distress was issued, as the notice was addressed to Crown Printers Limited and not Crown Clothing (Kenya) Ltd. The applicant did not establish a prima facie case with a probability of success, nor did it show that it would suffer irreparable harm that could not be compensated by damages. The court also held that the respondent's replying affidavit was properly before the court, as the deponent had personal knowledge and access to relevant records, and there was no procedural defect warranting its expungement. Consequently, both the preliminary objection and the application for...
Court Disposition
application dismissed with costs to the respondents
Orders
- The Chamber Summons dated 20th June 2007 is dismissed.
- The applicant's preliminary objection is dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
CIVIL CASE 311 OF 2007
CROWN CLOTHING (K) LTD. ………….................………… PLAINTIFF/APPLICANT
VERSUS
SHETH AGENCIES (1980) LIMITED ….............… 1ST DEFENDANT/RESPONDENT
SANNEX ENTERPRISES ………….........……….. 2ND DEFENDANT/RESPONDENT
RULING
In the Chamber Summons dated 20th June 2007, the prayers in respect of which the Applicant wants orders from me are prayers 3 and 4 as the other two prayers were granted earlier. The Chamber Summons is said brought under Order XXXIX Rules 1, 2, 2A, 3 and 9 of the Civil Procedure Rules, Sections 3A and 63 of the Civil Procedure Act. While prayer 4 is for costs, prayer 3 states as follows:
"THAT the honourable court pending the hearing and determination of this suit do grant a permanent injunction against the 1st Defendant, his agents, servants and/or employee including the 2nd Defendant herein from proclaiming, levying any distress, attaching and/or in any way interfering with the machinery and/or property of the Plaintiff within the property known as I.R. 31918/1 including the quite possession and occupation thereof."
The Respondents filed a Replying Affidavit and as a result the Applicant filed a Notice of Preliminary Objection dated 18th July 2007 to expunge the Replying Affidavit on the basis that it is defective and incompetent. That would have the effect of leaving the Applicant's Chamber Summons unopposed and I prevailed upon the Applicant and the Respondent argue the Preliminary Objection during the hearing of the Chamber Summons.
They did so and what has emerged is that while the applicant who is Plaintiff in this suit is saying that the Notice of Distress dated 24th April 2007 in the name of Crown Printers Limited and served upon "Crown Printers Limited" was issued against them the Applicant/Plaintiff – "Crown Clothing (Kenya) Ltd", the Respondents are saying that the Applicant/Plaintiff in this matter is a stranger as it is not "Crown Printers Limited" to which the Notice of Distress was directed by the Respondents. The Respondents therefore want this Chamber Summons be dismissed.
From what has been brought to my attention therefore, I do hereby dismiss this Chamber Summons with costs to the Respondents for the following reasons:
Firstly the Preliminary Objection by the Applicant is dismissed because there is no good basis for requiring Lalit Kumar Vakharia the deponent in the Replying affidavit dated 2nd July 2007, to disclose his source of information when he clearly states that he is aware of the matter in question from his own knowledge and from facts and records in his possession and it is not correct to say he filed no annextures. Further, no good basis to require stamp duty.
Secondly, the chamber Summons is dismissed because the Applicant has in my view failed to show that any of conditions in the case of Giella –vs- Cassman Brown & Co. Ltd. apply in this case where there is a pertinent question whether the Applicant is a stranger in this matter. In any case, this is a matter where compensation by payment of damages would be sufficient.
Dated this 22nd day of October 2007.
J. M. KHAMONI
JUDGE