https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2854

JDAN (Medically Incapacitated) Suing through her representative DNM v Real Management Services Limited & another (Environment and Land Miscellaneous Application E071 of 2026) [2026] KEELC 2854 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KEELC 2854 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Miscellaneous Application E071 of 2026 OA Angote, J May 14, 2026 Between JDAN (Medically Incapacitated) Suing through her representative DNM Applicant and Real Management Services Limited 1st Respondent High Class Auctioneers 2nd Respondent Judgment 1.Before this court for determination is the Applicant’s Notice of Motion Application dated 14th October, 2025 brought pursuant to the provisions of Articles 28, 40 and 47 of the Constitution of Kenya, Section 3A of the Civil Procedure Act, Section 13 of the Environment and Land Court Act, Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules, 2010; the Distress for Rent Act, the Auctioneers Act (No. 5 of 1996) and the Auctioneers Rules, 1997 seeking the following reliefs:i.That the proclamation and distress levied by the 2nd Respondent against the Applicant’s goods at Apartment D3, Expo Villas be and is hereby declared unlawful and set aside.ii.That the Respondents be and are hereby restrained from attaching, proclaiming, seizing, detaining, removing, or selling any goods not belonging to the Applicant, including goods owned by third parties and goods exempt from attachment under the Auctioneers Rules, 1997.iii.That the Respondents shall permit the Applicant and her representatives full, peaceful, and reasonable access to Apartment D3, Expo Villas for purposes of identifying, collecting, packing, and removing goods and personal effects belonging to the Applicant and to third parties.iv.That the Applicant and her representatives be and are hereby permitted to vacate Apartment D3, Expo Villas and remove all goods and personal possessions belonging to the Applicant and to third parties intact, without interference, obstruction, detention, claim, or condition imposed by the Respondents.v.That pending further orders of this Honourable Court, the Respondents shall maintain the status quo of the tenancy and premises and shall not alter possession, access, or control of Apartment D3, Expo Villas.vi.That the Respondents be and are hereby restrained from obstructing, preventing, or interfering with the Applicant’s or her representatives’ access to the premises for purposes of removing goods and effects.vii.That the Applicant be granted reasonable time to reconcile the tenancy account, remove goods and possessions, and regularize any verified rent arrears.viii.That the costs of this Application be in the cause. 2.In support of the Motion is the affidavit of DNM, the sister of the Applicant, JDAN, whom she describes as medically incapacitated. She deponed that she resides in the United States of America and travelled to Kenya upon learning of the Applicant’s serious illness and subsequent hospitalization, in order to assist in managing her affairs. 3.According to Ms DNM, the Applicant has been in occupation of Apartment D3, Expo Villas, Nairobi as a tenant since 2019. In December 2025, the 1st Respondent instructed the 2nd Respondent to levy distress for alleged rent arrears, which instructions were duly executed and that the goods proclaimed in the process included essential household items exempt from attachment, as well as property belonging to third parties, including herself and the Applicant’s son,JA who has resided with her since 2019. 4.She explained that she informed the Respondents of this position but they nonetheless included the third-party items in the proclamation; that the proclamation further listed basic household necessities exempt from attachment under the Auctioneers Rules, 1997 and that by early November 2025, the Applicant had become seriously unwell and physically debilitated, and from that time her illness materially impaired her ability to manage her tenancy affairs. 5.According to the Applicant, on 7th January 2026, the Applicant suffered an acute medical episode and was treated at the Emergency Department of MP Shah Hospital. Thereafter, on 9th January 2026, she was admitted to Westlands Specialist Hospital, where she has remained hospitalized. It was deposed that as a result, the Applicant is medically incapacitated and unable to manage her tenancy or property affairs. 6.It is the Applicant’s guardian’s deposition that on 30th January 2026, she notified the 1st Respondent that the Applicant would need to vacate the premises due to medical incapacity; that in response, the 1st Respondent demanded settlement of rent and immediate handover of vacant possession and that the said communication dismissed the Applicant’s medical incapacity and cited no lawful eviction process. 7.Notwithstanding the coercive demands contained in that communication, it was deposed that the 1st Respondent purported to propose an amicable resolution while continuing coercive enforcement, disregarding the Applicant’s medical incapacity and statutory tenancy rights. 8.Thereafter, it was deposed,JA was pressured to vacate the premises while his mother remained hospitalized; that upon vacating, the Respondents prevented him from removing his personal belongings, including his computer; that since 7th January 2026, neither the Applicant nor her son have occupied the premises and that the Respondents instructed security not to allow any goods to be removed, thereby preventing the lawful removal of the Applicant’s and third-party property even as they demanded vacant possession. 9.On the 30th January 2026, she stated, she issued a formal legal objection to the distress, which the Respondents refused to withdraw; that the tenancy account is disputed and currently under reconciliation, and that the 1st Respondent declined to provide the rent ledger electronically. Further, the rent statement issued included rent for February 2026, which was not yet due. She added that the 2nd Respondent acted through a licensed auctioneer, Johnstone Wamula. 10.Ms DNM stated that on 27th February 2026, she received a WhatsApp message from the said auctioneer indicating that the landlord had become impatient and was seeking immediate vacant possession. This communication, she noted, was made despite prior notice of the Applicant’s hospitalization and medical incapacity, and further indicated that any attendance at the premises would be arranged by prior appointment. 11.However, notwithstanding that representation, she explained that on a Friday morning at 8:00 a.m, the 2nd Respondent, through the said auctioneer, telephoned her stating that they were already at the premises, despite no appointment having been arranged or agreed upon and that on 3rd March 2026, she attended the premises following a WhatsApp message from the 2nd Respondent and confirmed that the proclaimed goods remained in situ. She contended that unless restrained, the Respondents would proceed to sell the goods and dispossess her, thereby occasioning irreparable loss unless this Court intervenes. 12.The Respondents filed grounds of opposition dated 19th March, 2026 premised on the grounds that the Motion is incompetent and fatally defective for want of authority of the purported representative to institute the proceedings and swear the supporting affidavit on behalf of the Applicant. 13.Further, it was deponed that the Motion does not meet the threshold for the grant of interlocutory injunctions as established in Giella vs Cassman Brown & CO. Ltd[1973] EA 358 as the Applicant has failed to establish a prima facie case with a probability of success, irreparable harm and that the balance of convenience tilts in her favour. 14.According to the Respondents, the distress for rent complained of was lawful and undertaken pursuant to the provisions of the Distress for Rent Act and the Auctioneers Act. 15.Further, it was noted vide the grounds, that the Applicant approached the court without full and frank disclosure of material facts, particularly the existence of rent arrears; that the ex parte orders issued on 11th March 2026 were obtained on the basis of this non-disclosure and misrepresentation of material facts and ought to be discharged and that the orders sought, if granted, would unjustly prejudice the Respondents and amount to sanctioning continued occupation of the premises without payment of rent. 16.Also filed was a replying affidavit of an even date sworn by Ramila Chouhan, the Property Manager of the 1st Respondent. She explained that the Applicant is a tenant of the 1st Respondent in respect of Apartment D3 on L.R. No. 209/3096, Expo Villas, Kileleshwa, Nairobi. 17.She contended that no written authority, power of attorney, guardianship order, or any other legal instrument has been exhibited to demonstrate that Dorothea Nyambok DNM is duly authorised to institute these proceedings or swear the affidavit on behalf of JDAN and that in the absence of such authority, the Motion is incompetent and defective. 18.Without prejudice to the foregoing, she noted, the Applicant failed to disclose that the tenant is in substantial rent arrears owed to the 1st Respondent, amounting to Kshs. 278,280, as evidenced by the tenant’s statement annexed and that the said arrears have persisted despite repeated demands and notices issued to the Applicant. 19.She denied the allegations that the Respondents acted unlawfully or without notice, terming them false and misleading, and maintained that the Applicant was duly notified of the outstanding rent and afforded an opportunity to settle the same. She further stated that the 2nd Respondent is a duly licensed auctioneer who was lawfully instructed to levy distress for rent. 20.She stated that the distress complained of was conducted lawfully and in accordance with the provisions of the Distress for Rent Act and the Auctioneers Act. She denied the allegations of harassment, illegality, or unlawful eviction, asserting that they are untrue and merely intended to mischaracterise a lawful distress process. 21.The 1st Respondent further contended that the Applicant’s reliance on alleged medical incapacity does not extinguish contractual obligations nor bar the Respondents from exercising their lawful remedies. She added that the Applicant failed to disclose material facts, particularly the existence and extent of rent arrears, and had therefore approached the court without full and frank disclosure. 22.The1st Respondent further deposed that the invocation of constitutional rights is misplaced and does not override contractual obligations or the statutory remedies available to a landlord. In her view, the Applicant had not demonstrated any illegality or impropriety in the distress process, which she maintained is a lawful mechanism for recovery of rent arrears. 23.She asserted that the Applicant has failed to establish a prima facie case with a probability of success, has not demonstrated irreparable loss incapable of compensation by damages, and that the balance of convenience tilts in favour of the Respondents. She also contended that the ex parte orders issued on 11th March 2026 were obtained without full disclosure of material facts, and that it is settled law that a party who obtains such orders through non-disclosure is not entitled to equitable relief. 24.In response to the grounds of opposition dated the 21st March, 2026, the Applicant through MsDNM contended that the present application is confined solely to the enforcement of subsisting orders issued by this court on 11th March 2026. She emphasized that the said orders remain valid, having neither been complied with, set aside, nor varied, and that the only issue before the court is their compliance, as opposed to a determination of the underlying dispute between the parties. 25.Further, that the matters raised by the Respondents, including issues relating to tenancy, rent arrears, and the lawfulness of distress for rent, are irrelevant to the question of compliance with existing court orders. According to the Applicant, the application does not turn on her status as a tenant, but rather on the implementation of orders already issued by the court. 26.On the issue of capacity, the Ms DNM maintained that the proceedings were instituted on behalf of a medically incapacitated patient and in her best interests. In addition, it was stated that some of the goods in question belong to her, thereby conferring upon her direct and independent standing. In any event, it was argued that any defect in representation is curable and cannot operate to defeat the enforcement of subsisting court orders. 27.The Applicant also rejected the Respondents’ reliance on principles governing interlocutory injunctions, contending that the present application does not seek fresh injunctive relief, but rather the enforcement of existing orders. As such, the applicable consideration is compliance with court orders, not the threshold for the grant of an injunction. 28.With regard to distress for rent, it was urged that even if the distress was lawful, it does not justify non-compliance with court orders. It was argued that the dispute concerns property not subject to lawful attachment, including third-party goods and personal effects, in respect of which the court expressly granted access and removal. 29.On the allegation of non-disclosure, the Applicant maintained that the existence of a tenancy dispute and issues relating to rent arrears had been disclosed to the best of her knowledge. In any event, it was argued that such matters do not affect the validity of the orders, which remain binding unless formally set aside. The Applicant pointed out that the Respondents had not filed any application to vary or discharge the said orders. 30.In conclusion, the Applicant submitted that the grounds of opposition do not displace the Respondents’ obligation to comply with subsisting court orders, and that any challenge to those orders ought to be pursued through a formal application. Accordingly, the Applicant urged the court to proceed with enforcement of its orders. Submissions 31.The Applicant, through Ms.DNM filed submissions on 5th March, 2026. She submitted that the Applicant has been in occupation of the suit premises as a tenant since 2019. However, in January 2026, she suffered a serious medical episode, following which she was admitted to hospital on 9th January 2026 and has remained hospitalized and medically incapacitated since then. Due to that condition, the Applicant is unable to reside in or manage affairs relating to the premises. 32.It was submitted that the present application does not seek to perpetuate the tenancy, but is limited to securing the court’s protection to enable the Applicant and third parties to retrieve their belongings without unlawful interference arising from the distress proceedings and proclamation issued by the 2nd Respondent. 33.On whether a prima facie case had been established, the Applicant submitted that first, the distress was levied during a period of known medical incapacity. Second, the proclamation included exempted household goods and property belonging to third parties, including members of the Applicant’s family. Reliance was placed on Rule 15 of the Auctioneers Rules, 1997, which exempts essential household goods from attachment. 34.On irreparable harm, it was urged that unless restrained, the Respondents may proceed with the sale of the Applicant’s belongings and those of third parties, or continue to detain the same. It was argued that once sold, such goods cannot easily be recovered, and damages would not provide an adequate remedy. The risk of unlawful sale or detention of personal property was therefore said to constitute irreparable harm warranting the court’s intervention. 35.On the balance of convenience, it was asserted that the same tilts strongly in favour of the Applicant. It was emphasized that the Applicant does not seek to remain in possession of the premises or to evade any lawful rent obligations. Rather, she seeks reasonable access to the premises, permission to remove her belongings and those of third parties, and protection against unlawful attachment or sale of exempt goods. 36.Counsel submitted that Article 28 of the Constitution guarantees every person inherent dignity which must be respected and protected, and that proceeding with aggressive enforcement measures against a hospitalized and medically incapacitated tenant undermines that protection. Also cited was Article 40 which protects the right to property and guards against arbitrary deprivation, and that attachment or sale of third-party property would violate that right. 37.The Respondents filed submissions on 19th March, 2026. Counsel submitted that the Motion is incompetent, devoid of merit, and fails to meet the well-settled principles governing the grant of interlocutory injunctions. 38.On the question of competence, counsel submitted that the Application is fundamentally defective for want of authority, arguing that although it has been instituted in the name of the Applicant through one Dorothea Nyambok DNM, no power of attorney, guardianship order, or any written authority has been exhibited to demonstrate her capacity to act on the Applicant’s behalf. In the absence of such authority, the supporting affidavit being the foundation of the Application, is defective and incapable of sustaining the reliefs sought, and that the Motion is liable to be struck out on that basis alone. 39.Without prejudice to the foregoing, counsel submitted that the Application does not meet the threshold for grant of an interlocutory injunction. On whether a prima facie case had been established, counsel submitted that the Applicant has failed to meet that threshold. It was contended that the uncontested position is that the Applicant is a tenant of the 1st Respondent and is in rent arrears. 40.According to the 1st Respondent, she lawfully instructed the 2nd Respondent, a licensed auctioneer, to levy distress for rent pursuant to the Distress for Rent Act, which provides a lawful statutory remedy to a landlord where rent remains unpaid. 41.It was further argued that the Applicant has not demonstrated any illegality, irregularity, or procedural impropriety in the distress process. In that regard, reliance was placed on Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others(supra), where the court defined a prima facie case as one which discloses an arguable right that has been infringed, which, according to counsel, has not been demonstrated in the present case. 42.On irreparable harm, counsel submitted that the Applicant has not shown that she stands to suffer injury that cannot be compensated by an award of damages. It was argued that any loss arising from distress for rent is quantifiable and therefore compensable. 43.On the balance of convenience, counsel submitted that it tilts in favour of the Respondents, who continue to suffer prejudice as the Applicant remains in occupation without payment of rent. It was contended that granting the orders sought would amount to unjust enrichment and would sanction continued default. 44.Counsel further submitted that the Applicant approached the court without full and frank disclosure of material facts, particularly by failing to disclose the existence and extent of rent arrears. It was argued that it is settled law that a party who obtains ex parte orders through non-disclosure is not entitled to equitable relief, and on that basis, the ex parte orders issued on 11th March 2026 ought to be discharged. 45.Addressing the Applicant’s reliance on medical incapacity, counsel submitted that while the Respondents sympathise with the Applicant, such circumstances do not extinguish contractual obligations nor bar the exercise of lawful remedies available to the landlord. It was further argued that the invocation of constitutional rights in the circumstances is misplaced and cannot override clear contractual and statutory obligations. Analysis and Determination 46.Having considered the pleadings and submissions, the issues that arise for determination are whether the Motion is competent and if so whether the impugned proclamation and attachment should be declared unlawful and set-aside in its entirety 47.Vide the present Motion, the Applicant seeks, inter alia, orders declaring the proclamation and distress levied by the 2nd Respondent unlawful, restraining the Respondents from attaching or interfering with goods belonging to the Applicant and third parties, and permitting access to the premises for purposes of removing personal effects pending the determination of the suit. 48.It is her position that the proclamation and distress are unlawful, irregular, and oppressive, having been levied during a period when she was medically incapacitated and hospitalized, and further that the process improperly targeted exempt household goods as well as property belonging to third parties, including members of her family. 49.She contends that despite notifying the Respondents of her medical condition and the presence of third-party goods, the Respondents proceeded with the distress, denied her access to remove personal belongings, and threatened to sell the proclaimed items, thereby exposing her to irreparable loss and violation of her rights unless the court intervenes. 50.In response, the 1st Respondent contends that the application is incompetent for want of authority, arguing that the proceedings have been instituted through a purported representative without any legal instrument demonstrating capacity to act on behalf of the Applicant, who is said to be medically incapacitated. In any event, they urge, the Applicant is in rent arrears and the distress was lawfully carried out in pursuant thereto. 51.As pointed out by the Respondents, the present Motion has been instituted through one DNM, cited as the representative of the Applicant. She contends that she is acting on behalf of the Applicant, her sister on account of her medical incapacity. 52.However, the precise nature and extent of that incapacity is not clearly demonstrated from the material placed before the court. What emerges from the record is that the supporting affidavit has been sworn by the Applicant’s sister, who describes herself as acting in a representative capacity, but without any further legal foundation or documentation establishing such authority. 53.The law provides clear and distinct avenues for representation of persons who are unable to act on their own behalf. Where the incapacity is of such a nature as to affect mental competence, the applicable framework is the Mental Health Act, which under Section 26 empowers the court to appoint a guardian or manager to act on behalf of such a person in relation to their person and estate. 54.In addition, under Order 32 of the Civil Procedure Rules, persons of unsound mind or those incapable of protecting their interests may only sue or be sued through a duly appointed next friend or guardian ad litem, following a formal process and upon satisfaction of the court as to the necessity and propriety of such representation. 55.On the other hand, where the incapacity is not mental but arises from other forms of physical or medical debilitation, the law still requires due and lawful representation. In such circumstances, a power of attorney or other written authority is ordinarily necessary to clothe the representative with legal capacity to act on behalf of the principal. 56.The seriousness of alleging incapacity, and the need for proper legal grounding, was emphasized in Grace Wanjiru Munyinyi & Another vs Gedion Waweru Githunguri & 5 Others, [2011] eKLR where the court cautioned that incapacity must be properly established and addressed within the confines of the law. 57.In the present case, and notwithstanding that the Respondents expressly raised the issue, Ms. Dorothea has not clarified the nature or legal foundation of her purported authority to act on behalf of the Applicant, merely asserting that the omission is curable. 58.However, authority to institute proceedings or to depone on behalf of another cannot be presumed from relationship or proximity. It must be demonstrated in accordance with the prescribed legal framework. This omission is therefore material. In the absence of any proof of such authority, Ms. Dorothea lacks the requisite legal capacity to institute the proceedings or to swear the supporting affidavit on behalf of the Applicant. 59.This is not a mere procedural lapse capable of being cured under Article 159 of the Constitution. Rather, it is a substantive defect that goes to the very root of the proceedings, as it concerns the legal standing of the person moving the court and the validity of the evidence placed before it. 60.In the circumstances, the Motion dated 14th October 2025 is found to be incompetent. The same is struck out with costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 14TH DAY OF MAY, 2026.O. A. ANGOTEJUDGEIn the presence ofMr. Matini for RespondentsMs Dorothia for ApplicantCourt Assistant: Tracy