[2002] KEHC 702 (KLR)
The court held that since there was no decree in existence, the objection proceedings under Order XXI Civil Procedure Rules were incompetent. The plaintiff levied distress as a landlord under the Distress for Rent Act, not as a judgment creditor executing a court decree. Therefore, the applicant's remedy, if any,...
Source-derived case information.
- Citation
- [2002] KEHC 702 (KLR)
- Parties
- Plaintiff: Harambee Co-operative Society Ltd; Defendant: Elite Computers Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 276 of 1998
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- Application struck out; preliminary objection upheld.
- Legal Topics
- Distress for Rent, Preliminary Objection, Execution of Decree, Landlord Tenant Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harambee Co-operative Society Ltd
Plaintiff
Elite Computers Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether objection proceedings under Order XXI Civil Procedure Rules are competent where no decree exists.
- 2 Whether the plaintiff's action in levying distress was pursuant to a statutory right as landlord or as a judgment creditor under a court decree.
- 3 Whether the appropriate remedy for the applicant lies under the Distress for Rent Act or the Civil Procedure Act.
Ratio Decidendi
The court held that since there was no decree in existence, the objection proceedings under Order XXI Civil Procedure Rules were incompetent. The plaintiff levied distress as a landlord under the Distress for Rent Act, not as a judgment creditor executing a court decree. Therefore, the applicant's remedy, if any, lay under the Distress for Rent Act and not under the Civil Procedure Act or Rules. The preliminary objection was upheld and the application to lift the attachment was struck out with costs.
Court Disposition
Application struck out; preliminary objection upheld.
Orders
- The application filed on 27.6.2002 for an order to lift the attachment is struck out with costs.
Full Case Text
Judgment text and source record
8 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 276 OF 1998
HARAMBEE CO-OPERATIVE SOCIETY LTD………….PLAINTIFF VERSUS ELITE COMPUTERS LTD…………………………………DEFENDANT RULING
In HCCC No. 279/98 where a similar application was made in a similar suit, I upheld a similar preliminary objection. I held in part:
“Since there is no decree in existence the objection proceeding under Order XXI Civil Procedure Rules are grossly incompetent plaintiff did not attach the objectors goods in execution of a decree. Plaintiff levied distress as a landlord against a tenant pursuant to section 3(1) of the Distress for Rent Act. Plaintiff in levying distress was exercising a statutory right as a landlord and not judgment debtors rights 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……”
The circumstances in this case are similar and I apply that passage Mutatis Mutandis to the application filed on 27. 6.2002.
Consequently I uphold the preliminary objection and strike out the application filed on 27. 6.2002 for an order to lift the attachment with costs.
E. M. Githinji JUDGE 7. 11. 2002