[2005] KEHC 567 (KLR)
The court found that the plaintiff's tenancy was a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301. The landlord's action of levying distress for rent without leave of the Business Premises Tribunal and without notice was in contravention of the Tribunal's...
Source-derived case information.
- Citation
- [2005] KEHC 567 (KLR)
- Parties
- Plaintiff: David Hudson Njuguna; Defendant: Muranga Properties Ltd; Defendant: Metrocomos Valuers Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 636 of 2005
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application (chamber Summons)
- Outcome
- application allowed
- Judges
- JL Osiemo
- Legal Topics
- Controlled Tenancy, Distress for Rent, Business Premises Tribunal, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Hudson Njuguna
Plaintiff
Muranga Properties Ltd
Defendant
Metrocomos Valuers Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application (chamber Summons)
Legal Issues
- 1 Whether the distress for rent levied by the landlord was unlawful without leave of the Business Premises Tribunal.
- 2 Whether the plaintiff is entitled to injunctive relief restraining the landlord from levying distress until the suit is heard and determined.
Ratio Decidendi
The court found that the plaintiff's tenancy was a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301. The landlord's action of levying distress for rent without leave of the Business Premises Tribunal and without notice was in contravention of the Tribunal's order dated 29th January 2003. The law requires that any dispute or enforcement action in respect of a controlled tenancy must be brought before the Tribunal, and the landlord must obtain leave before levying distress. The absence of the respondent's counsel and the uncontroverted evidence of the applicant led the court to allow the application and grant the relief sought.
Court Disposition
application allowed
Orders
- The distress levied on the plaintiff's office in the 1st defendant's premises is lifted and stopped until the suit is heard and determined.
- Costs of the application awarded to the plaintiff.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Case 636 of 2005
DAVID HUDSON NJUGUNA…………..……………..…………..……..PLAINTIFF
VERSUS
MURANGA PROPERTIES LTD…………………………..…….1ST DEFENDANT
METROCOMOS VALUERS LTD……………………………....2ND DEFENDANT
RULING
The plaintiff herein referred to as the tenant by way of this Chamber Summons seeks orders of this court that the distress levied on the plaintiff’s office in the 1st defendant’s premises known as Muranga Properties Building be lifted and stopped until this suit is heard and determined.
The application is premised on the following grounds:
That the landlord has detained the plaintiff’s goods in the premises.
That the purported distress is unlawful as it is without leave of the Tribunal without notice contrary to the Orders of the Tribunal dated 29th January 2003 and the amount claimed as rent is not payable.
The application is also supported by an dated affidavit sworn by Tenant/Applicant in which he deponed that he is a tenant of the first defendant paying monthly rent of Shs.12,000/= and that the tenancy is a controlled tenancy under the Landlord and Tenants (shops, Hotels and Catering Establishment) Act Cap 301. That he has had problems with the Landlord through its agents and was once forced to lodge Tribunal Case No. 249 of 2002 in the Business Premises Tribunal.
That the said complaint was heard on 29th January 2003 and the Tribunal issued an order prohibiting distress without leave levying of illegal charges and harassment by the Landlord.
The counsel for the Landlord/Respondent did not attend although the dated was given in court in the presence of both counsels. The application proceeded exparte.
By this application the tenant seeks orders that the distress levied on the plaintiffs office be lifted and stopped until the matter is heard and determined. Counsel for the applicant submitted that the distress was unlawful as the same was without leave of the Tribunal and without notice as ordered by the Tribunal on 29th January 2003 the tenancy being controlled tenancy under the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act Cap 301.
The tenancy of the applicant being a controlled tenancy, the landlord’s action was unlawful since he had to file a dispute before the Business Premises Tribunal which is mandated to deal with such disputes before any action is taken against the tenant.
For the above reasons the application is allowed in terms of Prayer 2 of the Chamber Summons dated 26th May 2005 with costs.
Delivered at Nairobi this 27th day of September 2005.
…………………………….
J.L.A. OSIEMO
JUDGE