[2011] KEHC 406 (KLR)
The court found that the appellant had presented new information that was not before the previous judge, specifically that rent had always been paid to M/s Onit Ltd and that requiring payment into court would cause hardship. The court held that this justified a review and variation of the previous order....
Source-derived case information.
- Citation
- [2011] KEHC 406 (KLR)
- Parties
- Appellant: Julius Ngumbao Mwengei; Respondent: Al Karim Badrudin Sunderji
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 234 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Interlocutory Injunction Order
- Outcome
- Application for review allowed; previous order varied.
- Legal Topics
- Injunctions, Review of Orders, Landlord Tenant Disputes, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Ngumbao Mwengei
Appellant
Al Karim Badrudin Sunderji
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Interlocutory Injunction Order
Legal Issues
- 1 Whether the order requiring the appellant to deposit rent into court pending appeal should be reviewed or varied.
- 2 Whether new information or hardship justifies variation of the interlocutory injunction order.
Ratio Decidendi
The court found that the appellant had presented new information that was not before the previous judge, specifically that rent had always been paid to M/s Onit Ltd and that requiring payment into court would cause hardship. The court held that this justified a review and variation of the previous order. Consequently, the order requiring the appellant to deposit rent into court was set aside and replaced with an order that rent be paid to the landlord, M/s Onit Ltd, as it falls due. The court further clarified that if M/s Onit Ltd is not the same as the respondent, the parties are at liberty to apply for further directions.
Court Disposition
Application for review allowed; previous order varied.
Orders
- The order requiring deposit of rent into court is set aside.
- Rents are to be paid to landlord M/s Onit Ltd as they fall due.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 234 OF 2010
JULIUS NGUMBAO MWENGEI …………………..……..……... APPELLANT/APPLICANT
VERSUS
AL KARIM BADRUDIN SUNDERJI …....…………………….... RESPONDENT/RESPONDENT
(Being an appeal from the Ruling of the Senior Principal Magistrate A.K.. Ndung’u Esq delivered on the
18th June 2010 in CMCC 2790 of 2010 at Milimani Commercial Courts Nairobi)
RULING
I.BACKGROUND
1. An application had been filed in the subordinate court whereby the appellant original plaintiff sought that court’s order to be granted an injunction restraining the respondent, his landlord from interfering with his full possession of the suit premises and levying distress on
LR R209/30/10.
2. The subordinate court declined to grant orders of injunction by its decision delivered on 18th June 2010. The appellant/original plaintiff filed appeal on 22nd June 2010 against that ruling and filed a similar application to this High Court.
3. The High Court granted the notice of motion of 22nd June 2010 but gave conditions to the orders of injunction that was granted to them on
16th June 2011.
4. The condition was that as of
“February 2010 …. The appellant [deposits] … all the rents into court until the appeal is heard and determined.”
5. The applicant appellant filed an application seeking review of this order.
IIPROCEDURE
6. Sitati J, who had given the orders, has been transferred from the Nairobi station. The law requires that the same judge handles their review matter unless they have been transferred or are unable to do so for good cause.
7. I took over this matter under Order 18 Civil Procedure Rules.
IIIREVIEW
8. The tenant had always paid his rent to M/s Onit Ltd. If he now required to pay rent to court and to pay to M/s Onit Limited it would be a hardship.
9. The issue that would be involved is that there is no relationship of landlord/tenant between the parties.
10. The application was opposed on grounds that there was no a new matter raised, mistake or error.
11. The issue raised by the appellant, one matter that was not in the knowledge of the former Hon. Judge who handled the application. The orders would have been different if new information had been given.
12. I hereby allow the application. The orders of Sitati J are hereby varied to read that the rents are not to be deposited to court but are to be paid to landlord M/s Onit Limited and when it falls due.
13. If per chance M/s Onit Limited are different from the respondent Al Karim Badrudin Sunderji, then the parties are at liberty to apply.
Costs to the appeal.
DATED THIS 4TH DAY OF OCTOBER 2011 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
iii)S M Mwaniki instructed by S M Mwaniki & Co Advocates for the Appellant/original plaintiff
iv)M Owuor instructed by M/s Owuor & Co Advocates for the Respondent/original defendant