[2011] KEHC 1934 (KLR)
The court found that the applicants failed to establish a landlord-tenant relationship with the respondents, as the respondents were not tenants but claimants of adverse possession. The original sale agreement's clause on rent did not create a tenancy in the absence of a concluded sale or occupation as tenants. The...
Source-derived case information.
- Citation
- [2011] KEHC 1934 (KLR)
- Parties
- Appellant: David Kinyanjui Njenga; Appellant: Monica Wangui Njenga; Appellant: Grace Njeri Njenga; Respondent: Maureen Waithera Mwenje; Respondent: Eric Kamau Mwenje; Respondent: Stephen Nyamu Mbinji t/a Lifeline Trader
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 192 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondents
- Legal Topics
- Adverse Possession, Distress for Rent, Stay of Execution, Landlord Tenant Relationship
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Kinyanjui Njenga
Appellant
Monica Wangui Njenga
Appellant
Grace Njeri Njenga
Appellant
Maureen Waithera Mwenje
Respondent
Eric Kamau Mwenje
Respondent
Stephen Nyamu Mbinji t/a Lifeline Trader
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution of the subordinate court's order releasing attached goods to the respondents.
- 2 Whether the relationship between the parties was that of landlord and tenant, justifying distress for rent.
- 3 Whether distress for rent can be levied against parties claiming adverse possession.
Ratio Decidendi
The court found that the applicants failed to establish a landlord-tenant relationship with the respondents, as the respondents were not tenants but claimants of adverse possession. The original sale agreement's clause on rent did not create a tenancy in the absence of a concluded sale or occupation as tenants. The trial magistrate correctly held that distress for rent was not available in these circumstances, and the attachment of goods was therefore unlawful. Consequently, the application for stay of execution of the order releasing the attached goods was dismissed, as the applicants had not demonstrated any legal basis for the distress or for the stay sought. The pending appeal on...
Court Disposition
application dismissed with costs to the respondents
Orders
- The application dated 29 April 2011 is dismissed with costs to the respondents.
- The stay of execution of the subordinate court's order is denied.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
HIGH COURT OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 192 OF 2011
(Being an appeal from the Order made by Hon. Mrs. Njora, Principal Magistrate, Milimani Commercial Courts, Nairobi on 28th April 2011)
DAVID KINYANJUI NJENGA
MONICA WANGUI NJENGA
GRACE NJERI NJENGA............................................................................APPLICANT/APPELLANTS/ORIGINAL DEFENDANT
VERSUS
MAUREEN WAITHERA MWENJE
ERIC KAMAU MWENJE
STEPHEN NYAMU MBINJIWET/A LIFELINE TRADER................RESPONDENTS/RESPONDENTS/ORIGINAL PLAINTIFFS
RULING
Application for stay of execution of the subordinate courts’ orderdated 29 April 2011)
I. INTRODUCTION
1. Being dissatisfied with the ruling of the subordinate court at Nairobi, the applicant/Appellant/Original Defendant filed this appeal to this High Court on 3 May 2011. An application by way of a Notice of Motion dat4d 29 April 2011 and filed on 5 May 2011 under certificate of urgency and exparte orders granted by the duty judge on 5 May 2011.
2. Interparte hearing was heard on 12 May 2011.
3. Before the interparte hearing, it transpired that there existed multiplicity of suits in this matter that came to nine cases including this appeal.
4. In brief, one Njenga Mathi, the proprietor of Land parcel L.R 10060/8, LR 10060/9; LR 10060/12 entered into a sale agreement, with one David Mwenje (now deceased). The sale agreement was never finalized. Njenga Mathu filed HCC 3195 of 1993 (Nairobi). This suit was never finalized. Njenga Mathu then sold the suit premises to David Kinyanjui Njenga and two others. He withdrew that case. The three persons he sold to happened to be his children. The children then filed HCCC 110 of 2000 against David Mwenje now deceased. The suit abated. The children of David Mwenje as legal representatives sued David Kinyanjui Njenga, the son of the original proprietor in HCC 243 of 2009 in adverse possession. The case was struck out (Muchelule J). The children of David Mwenje filed an appeal to the court of Appeal civil application 41 of 2011.
5. This Court of Appeal case is still pending. It south an injunction and stay of execution of striking out the case against them.
6. The children of the Original Proprietor then levied distress basing the same on a sale agreement that appears to have a clause in default of the agreement rent would be due and payable. They sent auctioneers and attached the goods for the children of David Mwenje. The said children then filed a case in the Chief magistrate’s court case No. 662 of 2011 for orders restraining the Defendants from levying distress on grounds that they had never been the tenants to the said Defendants. The Defendants argued that as the claim for adverse possession had been rejected, first by Mbogholi Msagha J in an application then by the Hon. Justice Muchelule J on striking out of the suit, there was nothing left but the issue of rent.
7. The trial Magistrate ruled that the attachment was illegal. That all the goods should be released to the applicant/plaintiffs.
8. The defendant then filed this appeal CA 192 of 2011 and sought for orders of stay of execution. They obtained exparte orders as stated above. They then filed a new suit in the High Court HCCC 121 of 2011 for auctioneer of the children of David Mwenje, which suit had not been served.
9. I was further made to understand that there is a succession cause No.1059 of 2009, the Estate of David Solomon Kamau Mwenje which is still pending.
II. APPLICATION 29 APRIL 2011
10. The Applicant/Original Defendant/Appellant seeks restraining orders that goods held by the auctioneers should not be released. That the said orders given were so done in error. This was based on the original sale agreement that stated rent ought to be paid where the sale agreement failed.
11. The respondent/original plaintiff/respondent stated there was never a tenant/landlord relationship. The best the Appellants could do is claim they were trespassers. If this is so, you cannot levy distress against a trespasser. This therefore, explains the new suit filed by the appellant of HCCC 121 of 2011 for auction and more profits.
III. FINDINGS
12. There is a Court of Appeal file No.41 of 2011 still pending on this matter, namely are the respondents entitled to adverse possession or not?
13. When the HCC 243 of 2009 case was struck out, it appears that the appellant attached the properties for rent. The issue therefore arises are the respondents tenants or legal representative to the new alleged owner of the property and applicant herein?
14. I believe the trial Magistrate is correct in holding that distress of rent cannot be taken up. That the attached goods be released.
15. I would find that an application to restrain the orders of the trial Magistrate for stay of execution must fail.
16. It is hereby ordered that the application dated 29 April 2011 be dismissed with costs to the respondents.
17. The main appeal on the same point is pending.
RULING DATED THIS 30TH DAY OF MAY 2011 AT NAIROBI.
M. ANG’AWA
JUDGE
Advocates
a.N. Kaburu instructed by Nelson Kaburu & Co. Advocates for the Applicants/Appellants/Original Defendants.
b.K. Chebii instructed by M. K. Chebii & Co. Advocates for the Respondent/Respondents/Original Plaintiffs