[2009] KEHC 3827 (KLR)
The court determined that it would be unjust to require the auctioneer (2nd Defendant), who acted on the 1st Defendant's instructions, to bear the cost of storage charges for the Plaintiff's goods attached in distraint for rent. The responsibility for payment of these charges lies between the Plaintiff and the 1st...
Source-derived case information.
- Citation
- [2009] KEHC 3827 (KLR)
- Parties
- Plaintiff: Double Dragon Limited; Defendant: The Trustees, Sisters of Immaculate Heart of Mary Mother of Christ; Defendant: Patrick Ezekiel Mbogo (t/a Target Achievers Auctioneers)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 245 of 2008
- Procedural Posture
- Civil Case / Preliminary Ruling on Contempt Application
- Outcome
- Further submissions required on payment of storage charges before substantive ruling on contempt application.
- Legal Topics
- Distress for Rent, Storage Charges, Execution of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Double Dragon Limited
Plaintiff
The Trustees, Sisters of Immaculate Heart of Mary Mother of Christ
Defendant
Patrick Ezekiel Mbogo (t/a Target Achievers Auctioneers)
Defendant
Procedural Posture
Civil Case / Preliminary Ruling on Contempt Application
Legal Issues
- 1 Who is responsible for payment of storage charges for goods attached in distraint for rent.
- 2 Whether the auctioneer (2nd Defendant) should bear the storage costs pending resolution of the dispute between Plaintiff and 1st Defendant.
Ratio Decidendi
The court determined that it would be unjust to require the auctioneer (2nd Defendant), who acted on the 1st Defendant's instructions, to bear the cost of storage charges for the Plaintiff's goods attached in distraint for rent. The responsibility for payment of these charges lies between the Plaintiff and the 1st Defendant. The court invited both parties to address this specific issue before a substantive ruling on the contempt application could be delivered.
Court Disposition
Further submissions required on payment of storage charges before substantive ruling on contempt application.
Orders
- Plaintiff and 1st Defendant to address the court on the issue of payment of storage charges for the attached goods before the court delivers a substantive ruling on the contempt application.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS) Civil Case 245 of 2008
DOUBLE DRAGON LIMITED ......................................PLAINTIFF
V E R S U S
1. THE TRUSTEES, SISTERS OF IMMACULATE HEART OF
MARY MOTHER OF CHRIST
2 PATRICK EZEKIEL MBOGO
(t/a Target Achievers Auctioneers) ...........................DEFENDANTS
P R E L I M I N A R Y R U L I N G
As I was preparing the ruling upon the contempt application herein (notice of motion dated 24th September, 2008) it became apparent to me that there is an important issue that has not been addressed in the respective written submissions of the parties. That issue is payment of storage charges for the Plaintiff’s goods that were attached in distraint for rent by the 2nd Defendant upon instructions of the 1st Defendant. It is apparent that the 2nd Defendant put these goods into commercial storage, and storage charges will have to be paid before the goods can be retrieved from there. Who will pay?
As far as the 2nd Respondent is concerned, he was executing valid instructions given to him by the 1st Defendant. It is therefore unreasonable to expect him to be out–of–pocket on account of the dispute between the Plaintiff and the 1st Defendant. It would not be just to require him to pay the storage charges in order to release the goods to the Plaintiff. The issue of payment of storage charges is therefore between the Plaintiff and the 1st Defendant.
I hereby invite the two parties to address the court on this issue before I can deliver substantive ruling on the contempt application.
DATED AT NAIROBI THIS 5TH DAY OF MARCH, 2009
H. P. G. WAWERU
J U D G E
DELIVERED THIS 6TH DAY OF MARCH, 2009