[2012] KEHC 5642 (KLR)
The court found that although the plaintiff was no longer a tenant of the defendant, the goods attached pursuant to the alleged distress for rent remained at risk of sale or disposal. Since the legality of the distress and the existence of rent arrears were in dispute and the defendants had not responded to the...
Source-derived case information.
- Citation
- [2012] KEHC 5642 (KLR)
- Parties
- Plaintiff: David Kariuki; Defendant: Francis Nganga Mundia (Kindest Auctioneers)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 589 of 2011
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Temporary injunction granted to protect attached goods; costs in the cause.
- Judges
- DW Mbuteti
- Legal Topics
- Interlocutory Injunctions, Distress for Rent, Landlord Tenant Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Kariuki
Plaintiff
Francis Nganga Mundia (Kindest Auctioneers)
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendants from selling, disposing of, or auctioning the plaintiff's attached property pending determination of the suit.
- 2 Whether the plaintiff's goods require protection despite the plaintiff no longer being a tenant of the defendant.
Ratio Decidendi
The court found that although the plaintiff was no longer a tenant of the defendant, the goods attached pursuant to the alleged distress for rent remained at risk of sale or disposal. Since the legality of the distress and the existence of rent arrears were in dispute and the defendants had not responded to the application, the court held that it was necessary to grant a temporary injunction to protect the plaintiff's attached goods from being sold or otherwise disposed of pending the determination of the suit. The injunction was limited to the attached goods only, and not to the tenancy relationship, which had already ended.
Court Disposition
Temporary injunction granted to protect attached goods; costs in the cause.
Orders
- A temporary injunction is granted restraining the defendants from selling, disposing of, or auctioning the plaintiff's property attached in distress pending determination of the suit, limited to protection of the attached goods.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO. 589 OF 2011
DAVID KARIUKI …………..………………....….…………….. PLAINTIFF
VERSUS
FRANCIS NGANGA MUNDIA
(Kindest Auctioneers)…………………..……………….... DEFENDANT
R U L I N G
1. The Plaintiff filed this suit by plaint dated 29th December 2011 seeking one main relief as follows:-
“An injunction (to restrain) the Defendants ... from levying distress or auctioning the Plaintiff’s property, or from interfering with the Plaintiff’s quiet possession of (his) rented premises on Plot Number 209/4468 along Busia Road, Industrial Road in Nairobi... for as long as the Plaintiff has complied with the terms of the tenancy.”
2. The Plaintiff pleaded that he was the 1st Defendant’s tenant in the suit premises paying a monthly rent of KShs 65,000/00, and that his tenancy was controlled under the Landlord and Tenant (Shops, Hotels & Catering Establishments) Act, Cap 301. He further pleaded that notwithstanding that he did not owe any arrears of rent, the 1st Defendant instructed the 2nd Defendant to levy illegal distress against him, and that the 2nd Defendant did so.
3. Together with the plaint the Plaintiff filed notice of motion dated 29th December 2011 seeking appropriate protection pending disposal of the suit. The application was brought under Order 40, rules1 and 2 of the Civil Procedure Rules (the Rules) and is the subject of this ruling.
4. The Defendants were duly served, but at the hearing of the application they had not filed any papers in response, and there was no appearance for them.
5. Learned counsel for the Plaintiff, in presenting the application, informed the court that the Plaintiff was no longer in the suit premises and thus no longer a tenant of the 1st Defendant, thus implying that the Plaintiff vacated the premises after filing the suit.
6. The temporary injunction sought in the application was, inter alia, to restrain the Defendants from “selling, disposing of or auctioning” the Plaintiff’s property attached in the distress levied against him pending adjudication of the issue whether or not he owed any arrears of rent.
7. Notwithstanding that he is no longer a tenant of the 1st Defendant, the temporary injunction sought will be necessary to protect the Plaintiff’s attached goods against sale or disposal. I will grant the same, to extend only to protection of the attached goods against sale or other disposal. It is so ordered.
8. Costs of the application shall be in the cause.
DATED AT NAIROBI THIS 22ND DAY OF MARCH 2012
H.P.G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 23RD DAY OF MARCH 2012