[2002] KEHC 623 (KLR)
The court found that the dispute between the parties centers on the interpretation of the lease and the payment of an increment in rent, which is a matter that requires full trial and evidence from both sides. The applicant is conducting a business that affects third parties, and if distress is levied, he stands to...
Source-derived case information.
- Citation
- [2002] KEHC 623 (KLR)
- Parties
- Plaintiff: Dwijendra Kurma Varma t/a Rifkins Business College; Defendant: National Union of Kenya Muslims Trust Fund
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 93 of 2001
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- interlocutory injunction granted
- Legal Topics
- Landlord Tenant Disputes, Injunctions, Distress for Rent, Controlled Tenancy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dwijendra Kurma Varma t/a Rifkins Business College
Plaintiff
National Union of Kenya Muslims Trust Fund
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is in arrears of rent as claimed by the defendant.
- 2 Whether the defendant is entitled to levy distress for the alleged arrears of rent.
- 3 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendant from levying distress pending determination of the suit.
Ratio Decidendi
The court found that the dispute between the parties centers on the interpretation of the lease and the payment of an increment in rent, which is a matter that requires full trial and evidence from both sides. The applicant is conducting a business that affects third parties, and if distress is levied, he stands to suffer substantial loss that cannot be adequately compensated by damages. The court held that the balance of convenience favors the applicant, and that the circumstances do not present a clear case for distress. Therefore, the court granted the interlocutory injunction restraining the defendant from levying distress pending the determination of the suit.
Court Disposition
interlocutory injunction granted
Orders
- An injunction is granted restraining the defendant from levying distress for rent pending determination of the suit.
- Costs in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO.93 OF 2001
DWIJENDRA KURMA VARMA t/a
RIFKINS BUSINESS COLLEGE ……………………………. PLAINTIFF
VERSUS
NATIONAL UNION OF KENYA
MUSLIMS TRUST FUND ………………………………... DEFENDANT
R U L I N G
By an amended plaint the Plaintiff seeks an injunction against the Defendant pending determination of this suit. The suit arises out of disagreements between himself as tenant and the Defendant as his landlord. He states he has paid all the rent due but the landlord demands a sum of Shs.89,100 purportedly being arrears of rent and has threatened to levy distress if the said sum is not paid. The applicant therefore filed this application to restrain the distress and a temporary stay and other consequential reliefs. The grounds are that no rent is in arrears and if distress is allowed the Defendant will throw out the Applicant while the tenancy is controlled. The applicant says he runs an institution known as “RIFKINS BUINSESS COLLEGE & TYPING BUREAU” and that he pays rent regularly. In fact he says has paid higher rent than lawfully due because of an oversight on his part. He has exhibited a schedule showing how much he has paid – “DKV 3”. He further says if distress is allowed he will suffer great loss of business assets, business will come to a standstill and he will suffer great loss and loss of business reputation and the students enrolled will lose greatly.
In reply the Respondent opposes the application and asserts that the Plaintiff is in arrears to the extent of Shs.89,100/-. From the submissions of both counsel and upon perusal of the affidavits filed on both sides it is clear that the basic rent of Shs.33,000/- per month is being paid regularly but that this dispute relates to the payment of increment amounting to Shs.9,900/- per month.
I find that for that sum the applicant stands to lose substantially if distress is levied and the rights of third parties will be definitely affected. It is my view that the dispute can be resolved upon a full trial with each party producing full evidence as to the interpretation of the lease and the said Tribunal Order. In the meantime although the remedy of unlawful distress is in the damages under Chapter 293 this should be in clear cases where there is no serious dispute. In the present case I find the Applicant will suffer substantial loss which cannot be compensated in damages. The applicant is in premises carrying on business which concerns other persons. The balance of convenience tilts in his favour. For these reasons orders are granted as prayed.
Costs in the caus.
Dated at Mombasa this 3rd Day of May, 2002.
J. KHAMINWA
COMMISSIONER OF ASSIZE
Read in presence of Mr. Doshi.
Mr. Nyongesa – No appearance.
J. KHAMINWA
COMMISSIONER OF ASSIZE