[2014] KEHC 5723 (KLR)
The court found that, in light of the absence of a constituted Tribunal to hear the dispute, it was necessary to balance the interests of both parties by granting interim relief. The petitioner admitted owing rent, but the exact amount was disputed and should be determined by the Tribunal. To prevent the proceedings...
Source-derived case information.
- Citation
- [2014] KEHC 5723 (KLR)
- Parties
- Applicant: Hellen Atieno Oswago; Respondent: Elsie Otieno
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 146 of 2014
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- Interim relief granted to preserve status quo pending Tribunal constitution.
- Judges
- DAS Majanja
- Legal Topics
- Right of Access to Justice, Landlord Tenant Disputes, Interim Relief, Distress for Rent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hellen Atieno Oswago
Applicant
Elsie Otieno
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to interim relief to preserve the status quo pending constitution of the Business Premises Rent Tribunal.
- 2 Whether the respondent should be restrained from levying further distress or interfering with the premises until the Tribunal is constituted.
- 3 Whether the right of access to justice under Article 48 of the Constitution is threatened by the absence of a Tribunal Chairperson.
Ratio Decidendi
The court found that, in light of the absence of a constituted Tribunal to hear the dispute, it was necessary to balance the interests of both parties by granting interim relief. The petitioner admitted owing rent, but the exact amount was disputed and should be determined by the Tribunal. To prevent the proceedings from being rendered nugatory and to protect the petitioner's right of access to justice, the court ordered the petitioner to pay a portion of the claimed arrears and reasonable auctioneers' charges, after which the respondent was to release the distrained property and allow the petitioner to resume business. The respondent was restrained from further distress or interference...
Court Disposition
Interim relief granted to preserve status quo pending Tribunal constitution.
Orders
- The petitioner shall pay to the respondent Kshs 150,000 together with reasonable auctioneers' charges within 7 days.
- Upon payment, the respondent shall release all the distrained property and allow the petitioner to operate her business in the premises.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 146 OF 2014
BETWEEN
HELLEN ATIENO OSWAGO……………………......PETITIONER
AND
ELSIE OTIENO………………………………………RESPONDENT
JUDGMENT
The petitioner in this case is the tenant while the respondent is the landlord of some business premises situated at LR No. 209/1146 at Menengai Road, Upper Hill, Nairobi. She claims that that the landlord unlawfully levied distress and as a result she filed a complaint at the Business Premises Rent Tribunal (“the Tribunal”) being Tribunal Case No. 165 of 2014 seeking orders to restrain the landlord from, inter alia, interfering with the premises and her quiet possession pending hearing of her complaint.
The reason for filing the petition dated 31st March 2014 is to preserve the status quo as the Tribunal has not been constituted by having a sitting Chairperson. The petitioner seeks interim relief grounded on the provisions of the Constitution that protect the right of access to justice particularly Article 48.
The purpose of the petition is to preserve the matter so that the Tribunal proceedings are not rendered nugatory by what are clearly circumstances beyond her control. I have read the depositions filed by the parties and heard counsels’ submissions and I take the following view of the matter. On the one hand, the petitioner admits that she owes at least Kshs 394,000/= rent while on the other hand, the respondent claims Kshs 580,000/= outstanding rents. Where the truth lies will be a matter for the Tribunal to resolve. All I am required to do is to balance both parties’ interests pending the constitution of the Tribunal.
In the circumstances, the orders that commend themselves to the Court are as follows;
The petitioner shall pay to the respondent Kshs 150,000/= together with reasonable auctioneers’ charges within the next 7 days whereupon the respondent shall release all the distressed property and allow the petitioner to operate her business in the premises.
The respondent is restrained from levying further distress or in any way interfering with the suit premises pending any further orders that may be issued in Nairobi BPRT Case No. 165 of 2014.
The petitioner shall continue to pay rent as and when it falls due and in default order (ii) shall lapse without reference to Court or the Tribunal.
There shall be no order as to costs.
DATED and DELIVERED at NAIROBI this 14th day of April 2014.
D.S. MAJANJA
JUDGE
Mr Nyangito instructed by Nyangito and Company Advocates for the petitioner.
Mr Muganda instructed by Sagana, Biriq and Company Advocates for the respondent.