[2002] KEHC 701 (KLR)
The court held that it lacked jurisdiction to entertain the objection proceedings because there was no decree in existence and the goods were not attached in execution of a decree. The plaintiff's action was a statutory distress for rent, not a court-ordered execution. Therefore, the objector's remedy, if any, lay...
Source-derived case information.
- Citation
- [2002] KEHC 701 (KLR)
- Parties
- Plaintiff: Harambee Co-operative Society Ltd.; Defendant: Afro Electrical Service Ltd.; Objector: Ranjit Singh
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 279 of 1998
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection to Objection Proceedings
- Outcome
- application struck out with costs
- Legal Topics
- Landlord Tenant Disputes, Distress for Rent, Jurisdiction of Court, Objection Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harambee Co-operative Society Ltd.
Plaintiff
Afro Electrical Service Ltd.
Defendant
Ranjit Singh
Objector
Procedural Posture
Civil Case / Ruling on Preliminary Objection to Objection Proceedings
Legal Issues
- 1 Whether the court has jurisdiction to entertain objection proceedings where no decree exists.
- 2 Whether the objection proceedings under Order XXI Civil Procedure Rules are applicable to distress for rent situations.
Ratio Decidendi
The court held that it lacked jurisdiction to entertain the objection proceedings because there was no decree in existence and the goods were not attached in execution of a decree. The plaintiff's action was a statutory distress for rent, not a court-ordered execution. Therefore, the objector's remedy, if any, lay under the Distress for Rent Act and not under the Civil Procedure Act or Rules. The application was thus misconceived and struck out with costs.
Court Disposition
application struck out with costs
Orders
- The application dated 26.6.2002 is struck out.
- Costs to be taxed and paid forthwith.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 279 OF 1999
HARAMBEE CO-OPERATIVE SOCIETY LTD.………………PLAINTIFF
VERSUS
AFRO ELECTRICAL SERVICE LTD.……………………….DEFENDANT
R U L I N G
The suit against defendant for recovery of the leased premises is still pending for hearing. The dispute between plaintiff and defendant is merely a land and tenant dispute.
On 24. 5.2002 plaintiff levied distress to recover Shs.964,000/= as rent arrears. A notice of objection to attachment as filed by Ranjit Singh as Objector through S. Ndege Advocate. The objection was filed under Order XXI Rule 53 (1) and (2) of Land Procedure Act.
He objector subsequently filed a chamber summons under Order XXI Rule 56 and 57 of Civil Procedure Rules praying that the proclamation objectors household goods be lifted.
Plaintiff filed a notice of preliminary objection to the application.The main ground of preliminary objection is that the court has no jurisdiction to entertain the objectors claim as there is no attachment of a decree.
The objectors counsel did not attend the hearing. I have considered Mr. Nyamondi’s submissions in support of the preliminary objection. I agree that court has no jurisdiction to grant the relief sought because the goods allegedly belonging to the objector were not proclaimed in pursuant to execution of a decree of any court since there is no decree in existence the objection proceedings under Order XXI Civil Procedure Rules are grossly misconceived. Plaintiff did not attach the objectors goods in execution of a decree. Plaintiff levied distress as a landlord against tenant pursuant to Section 3(1) of Distress for Rent Act. Plaintiff in levying the distress was exercising a statutory right as a landlord and not a judgment debtor’s right under a decree of the court. The applicants remedy lies under the distress for Rent Act and not under the Civil Procedure Act or Rules.
It is for these reasons that I uphold the preliminary objector and strike out the application dated 26. 6.2002 with costs which should be taxed and paid forthwith.
E.M. GITHINJI
JUDGE
5. 11. 2002
Mr. Mutunge holding brief for Mr. Nyamondi present
Mr. Muriuki holding brief for Mr. Ndege present