[2005] KEHC 2864 (KLR)
The court found that the applicant was in arrears of rent and had not come to equity with clean hands, a prerequisite for the grant of equitable remedies such as an injunction. The respondent had a statutory right to levy distress for rent, and there was prima facie evidence that rent was due and owing....
Source-derived case information.
- Citation
- [2005] KEHC 2864 (KLR)
- Parties
- Plaintiff: Elizabeth Wairimu Richard; Respondent: Grace Muthoni Ndungu; Respondent: Charles Wanyeki Wairagu; Respondent: Hippo General Merchants
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 22 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Temporary Injunction
- Outcome
- application dismissed with costs
- Judges
- GG Okwengu
- Legal Topics
- Temporary Injunctions, Landlord Tenant Disputes, Distress for Rent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Wairimu Richard
Plaintiff
Grace Muthoni Ndungu
Respondent
Charles Wanyeki Wairagu
Respondent
Hippo General Merchants
Respondent
Procedural Posture
Civil Case / Ruling on Application for Temporary Injunction
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondent from interfering with her occupation of the premises or selling her property pending determination of the tribunal case.
- 2 Whether the applicant has come to court with clean hands and is entitled to equitable relief.
Ratio Decidendi
The court found that the applicant was in arrears of rent and had not come to equity with clean hands, a prerequisite for the grant of equitable remedies such as an injunction. The respondent had a statutory right to levy distress for rent, and there was prima facie evidence that rent was due and owing. Consequently, there was no justification for the court to interfere with the respondent's exercise of that right. The application for a temporary injunction was therefore dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for a temporary injunction is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI HIGH COURT CIVIL CASE NUMBER 22 OF 2005
ELIZABETH WAIRIMU RICHARD………………………..PLAINTIFF VERSUS GRACE MUTHONI NDUNGU } CHARLES WANYEKI WAIRAGU } HIPPO GENERAL MERCHANTS }……………RESPONDENTS
R U L I N G
Elizabeth Wairimu Richard the Plaintiff applicant seeks an order of temporary injunction under order XXXIX rule 1, 2, 2a, 3,(1), (2), and(3) of the Civil Procedure rules to restrain her landlady Grace Muthoni Ndungu (1st Respondent) from interfering with the applicant’s quiet occupation of Plot No.L.R. 5118/98 Naru Moru or proceeding with the intended sale of the applicant’s properties pending the determination of Business Premises Rent Tribunal Case Number 30 of 2004 at Nyeri.
From the applicant’s supporting affidavit it is evident that the Respondent purported to increase rent, which increase the applicant is disputing and has filed a reference in the Business Premises Tribunal. The matter still remains pending in the tribunal. In the meantime the Respondent has moved and levied distress for rent.
What the applicant has conveniently avoided to disclose is that she is in arrears of rent. This is evident from the correspondence between the applicant’s advocate and the Respondent’s advocate annexed as GMN 3 and 4. The applicant has not paid the full rent even going by the old rate of Kshs.4,000/- per month.
The applicant is seeking an equitable remedy but has not come to equity with clean hands. Distress for rent is a statutory right which the Respondent is entitled to.
There is prima facie evidence that the right has accrued to the Respondent as there is rent which is due and owing to the Respondent from the applicant. There is therefore no justification for this court interfering with the exercise of that right.
I therefore find no merit in this application and therefore dismiss it with costs.
Dated, signed and delivered this 10th day of May 2005.
H. M. OKWENGU
JUDGE