[2010] KEHC 2117 (KLR)
The court found that the Applicants were not the tenants owing rent to the 2nd Respondent and that the motor vehicles in question did not belong to the 1st Respondent, the alleged tenant. There was no evidence connecting the Applicants to the rent dispute between the 1st and 2nd Respondents. The 2nd Respondent's...
Source-derived case information.
- Citation
- [2010] KEHC 2117 (KLR)
- Parties
- Applicant: Janet Mwende Kimeli; Applicant: Zahid Enterprises Ltd; Applicant: Road Runer Carriers Ltd; Applicant: Ashok Panchal; Applicant: Imperial Bank; Applicant: Max Transporters; Respondent: Dilbagh Singh Brothers (Investment) Limited; Respondent: Kenya Railways Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 17 of 2010
- Procedural Posture
- Civil Case / Ruling on Chamber Summons for Injunction
- Outcome
- application granted
- Legal Topics
- Temporary Injunctions, Distress for Rent, Ownership of Property, Mandatory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Janet Mwende Kimeli
Applicant
Zahid Enterprises Ltd
Applicant
Road Runer Carriers Ltd
Applicant
Ashok Panchal
Applicant
Imperial Bank
Applicant
Max Transporters
Applicant
Dilbagh Singh Brothers (Investment) Limited
Respondent
Kenya Railways Corporation
Respondent
Procedural Posture
Civil Case / Ruling on Chamber Summons for Injunction
Legal Issues
- 1 Whether the Applicants are entitled to a temporary injunction restraining the 2nd Respondent from levying distress for rent on the motor vehicles.
- 2 Whether the Applicants are entitled to a mandatory injunction compelling the release of the specified motor vehicles.
- 3 Whether the 2nd Respondent lawfully levied distress for rent on property not owned by the 1st Respondent.
Ratio Decidendi
The court found that the Applicants were not the tenants owing rent to the 2nd Respondent and that the motor vehicles in question did not belong to the 1st Respondent, the alleged tenant. There was no evidence connecting the Applicants to the rent dispute between the 1st and 2nd Respondents. The 2nd Respondent's action of levying distress for rent on property not owned by the tenant was unlawful. The court concluded that the Applicants had established a prima facie case and were entitled to the injunctive reliefs sought, both to restrain the 2nd Respondent from further distress and to compel the release of the vehicles.
Court Disposition
application granted
Orders
- Chamber Summons dated 18th January 2010 is granted as prayed.
- A temporary injunction restraining the 2nd Defendant, its agents and/or officers from levying distress, attaching, advertising for sale, or selling the Plaintiffs' properties is issued.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
CIVIL CASE NO.17 OF 2010
JANET MWENDE KIMELI……….......…………………………..1ST PLAINTIFF/APPLICANT
ZAHID ENERPRISES LTD………......…………………………..2ND PLAINTIFF/APPLICANT
ROAD RUNER CARRIERS LTD….…......………..………….…..3RD PLAINTIFF/APPLICANT
ASHOK PANCHAL…………….......….......………………….…..4TH PLAINTIFF/APPLICANT
IMPERIAL BANK……………….…......……….......……………..5TH PLAINTIFF/APPLICANT
MAX TRANSPORTERS………….……......…........……………..6TH PLAINTIFF/APPLICANT
Versus
DILBAGH SINGH BROTHERS (INVESTMENT LIMITED...1ST DEFENDANT/RESPONDENT
KENYA RAILWAYS CORPORATION……............………..2ND DEFENDANT/RESPONDENT
RULING
By Chamber Summons dated 18th January 2010, Plaintiffs/Applicants are praying for a temporary injunction restraining the 2nd Defendant, its agents and/or officers from levying distress, attaching, advertising for sale, selling the Plaintiff’s properties in furtherance of the distress for rent levied by Messrs Sadique Enterprises. The Applicants further seek a temporary mandatory injunction compelling the Defendants/Respondents to release to the Applicants Motor vehicles registration numbers KAX 731 K, KAU 254 Q, KAV 883 T, KAM 912 K, ZB 8280.
From what the parties are saying, the Applicants had taken the above mentioned motor vehicles to the 1st Respondent’s garage when Messrs Sadique Enterprises proclaimed the said motor vehicles upon instructions by the 2nd Respondent for the purpose of levying distress for rent alleged owned by the 1st Respondent to the 2nd Respondent.
On the balance of probabilities the motor vehicles do not belong to the 1st Respondent. The 1st Respondent does not own the motor vehicles and there is no evidence that the Applicants are in any way connected with the 2nd Respondent concerning the motor vehicles, except as garage repairing aforementioned motor vehicles.
The 2nd Respondent has not brought any evidence to show that the vehicles were owned by the 1st Respondent. On the other hand, the 1st Respondent supports what the Applicants are saying.
In the circumstances, I cannot comprehend how the 2nd Respondent thought what was done was the correct and lawful way of recovering rent from the 1st Respondent and I think it would be proper to grant the prayers sought by the Applicants in this Chamber Summons.
Accordingly, Chamber Summons dated 18th January 2010 be and is hereby granted as prayed.
Dated this 19th day of February 2010.
J.M. KHAMONI
JUDGE
Present:
Morara Naisa & Co. Advocates for the Applicants
Mwaniki Gachoka & Co. Advocates for the 2nd Respondent