[2015] KEHC 4706 (KLR)
The court found that the Defendants were prima facie in rent arrears and, pursuant to Rule 7 of the Auctioneers Rules, 1997, are liable to pay the auctioneer's storage fees. The court noted that the Plaintiff's instructions to the auctioneer were based on a valid court order and that the record did not support the...
Source-derived case information.
- Citation
- [2015] KEHC 4706 (KLR)
- Parties
- Plaintiff: Impressions Advertising Limited; Defendant: Digital Printing & Imaging Solutions Limited; Defendant: Timothy Njonjo Ngaruiya; Defendant: Sammy Thuo Juma; Defendant: Anthony Gathuri Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 403 of 2009
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application Regarding Auctioneer's Storage Charges and Security
- Outcome
- Application allowed in part; Defendants to pay auctioneer's fees; costs in the cause.
- Judges
- JK Sergon
- Legal Topics
- Landlord Tenant Disputes, Distress for Rent, Auctioneer Charges, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Impressions Advertising Limited
Plaintiff
Digital Printing & Imaging Solutions Limited
Defendant
Timothy Njonjo Ngaruiya
Defendant
Sammy Thuo Juma
Defendant
Anthony Gathuri Mwangi
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application Regarding Auctioneer's Storage Charges and Security
Legal Issues
- 1 Who is liable to pay the auctioneer's storage charges following attachment of goods in a landlord-tenant dispute.
- 2 Whether an alternative form of security should be granted pending determination of the suit.
Ratio Decidendi
The court found that the Defendants were prima facie in rent arrears and, pursuant to Rule 7 of the Auctioneers Rules, 1997, are liable to pay the auctioneer's storage fees. The court noted that the Plaintiff's instructions to the auctioneer were based on a valid court order and that the record did not support the Defendants' claim of lack of arrears or improper process. The court further held that if the Plaintiff's claim ultimately fails, the Defendants may recover the costs from the Plaintiff. On the issue of security, the court directed that the Plaintiff must make a formal application to be considered on its merits.
Court Disposition
Application allowed in part; Defendants to pay auctioneer's fees; costs in the cause.
Orders
- The Defendants are hereby ordered to pay the auctioneers fees.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 403 OF 2009
IMPRESSIONS ADVERTISING LIMITED......................PLAINTIFF
VERSUS
1. DIGITAL PRINTING & IMAGING SOLUTIONS LIMITED
2. TIMOTHY NJONJO NGARUIYA
3. SAMMY THUO JUMA
4. ANTHONY GATHURI MWANGI...............................DEFENDANTS
RULING
There is a landlord-tenant dispute between the Plaintiff and the Defendants for which the Plaintiff filed this suit seeking outstanding rent of KShs. 1,293,018 as at 1st October, 2010 for the unexpired lease in the sum of KShs. 10,816,685/=. The Plaintiff filed this suit together with an application dated 20th September, 2013 seeking that the Defendants' goods be attached and be kept in safe custody by the firm of Eshikoni Agency (auctioneer)pending the hearing and determination of this suit.
This court Waweru J, granted the orders sought in the application on 26th September, 2013. The court proposed that the said goods be released to the Defendants and an issue has arisen as to who is liable to paying the auctioneers' storage charges and whether an alternative form of security should be granted. The Plaintiff cited Rule 7 of the Auctioneers Rules, 1997 which provides that a debtor shall pay the charges of the auctioneer unless the debtor cannot be found or has no goods which execution cannot be levied on or the sale proceeds are insufficient to cover the charges under Section 4 of the Distress for Rent Act. The Plaintiff submitted that since it is the Defendants who defaulted in rent payment, they are the proper party to pay the auctioneer charges. The Plaintiff in that regard cited Ahmed O. Bachani v. Zubeda Nanju (2014)eKLR, where an applicant was ordered to pay auctioneers fees before his motor vehicle which had been attached could be released to him.
The Auctioneer on the other hand contended that the Plaintiff persuaded court to proceed ex parte yet the Defendant had not been served with the application. That according to the Defendants, they were not in any arrears and did not have the knowledge of the distress until the suit was filed.
I have considered the depositions herein. The Auctioneer has not tendered sufficient evidence to prove that the Defendants were not in arrears as was prima facie found. His allegations are based on the information received from the Defendants. While it is stated that distress was levied before the filing of the Plaint, the record reflects contrary picture to the one given by the auctioneer. It is clear from the record that the plaint and the application were filed together and it is from the order of court that the Plaintiff gave the Auctioneer instructions.
Considering the fact that the Defendants were prima facie found to be in arrears vis a vis the provisions of Rule 7 of the Auctioneers Rules, 1997, I find that it is upon the Defendants to pay the auctioneers storage fees. In the event the Plaintiff's case fails, the Defendants shall be entitled to payment of the costs therein from the Plaintiff. With regard to security, it is only just that the Plaintiff makes a formal application to be heard on merit. I consequently issue the following orders:-
The Defendants are hereby ordered to pay the auctioneers fees.
Costs of the application to be in the cause.
Dated, Signed and Delivered in open court this 29th day of May, 2015.
J. K. SERGON
JUDGE
In the presence of:
Miss. Chepkorir h/b for Issa for the Plaintiff
Miss Otieno h/b Mrs. Wanyoike for the Defendant