[2010] KEHC 1160 (KLR)
The court found that the interim orders restraining the respondent from levying distress for rent were still in force and had not lapsed, contrary to the appellant's submissions. Given that the substantive application regarding the injunction was scheduled for hearing within a week, the court held it was appropriate...
Source-derived case information.
- Citation
- [2010] KEHC 1160 (KLR)
- Parties
- Appellant: Julius Ngumbao Mwengei; Respondent: Alkarim Badrudin Sunderji
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 234 of 2010
- Procedural Posture
- Civil Suit / Interlocutory Application for Review of Interim Injunction
- Outcome
- Application for review of interim injunction declined; matter to proceed to substantive hearing.
- Judges
- GG Okwengu
- Legal Topics
- Interim Injunctions, Review of Orders, Levy of Distress for Rent, Security for Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Ngumbao Mwengei
Appellant
Alkarim Badrudin Sunderji
Respondent
Procedural Posture
Civil Suit / Interlocutory Application for Review of Interim Injunction
Legal Issues
- 1 Whether the interim order of injunction restraining the respondent from levying distress for rent should be reviewed or set aside.
- 2 Whether the respondent should be allowed to collect rent or, in the alternative, have rent deposited in court pending the appeal.
- 3 Whether the interim orders are still in force or have lapsed.
Ratio Decidendi
The court found that the interim orders restraining the respondent from levying distress for rent were still in force and had not lapsed, contrary to the appellant's submissions. Given that the substantive application regarding the injunction was scheduled for hearing within a week, the court held it was appropriate for the issues raised in the present application to be determined in the substantive application. The court declined to review or vary the interim orders at this interlocutory stage, instead directing that the matter proceed as scheduled before the judge who had partly heard it, and that all issues be canvassed in that substantive hearing.
Court Disposition
Application for review of interim injunction declined; matter to proceed to substantive hearing.
Orders
- The hearing of the application dated 22nd June, 2010, to proceed before Hon. Sitati J. on 3rd November, 2010, as scheduled.
- Issues raised in the present application to be canvassed before Hon. Sitati J. for determination in the substantive application.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI LAW COURTS)
Civil Suit 234 of 2010
JULIUS NGUMBAO MWENGEI……………………..APPELLANT
VERSUS
ALKARIM BADRUDIN SUNDERJI………………..RESPONDENT
R U L I N G
1. What is before me is a notice of motion brought under Section 80 of the Civil Procedure Act. The respondent, Alkarim Badrudin Sunderji, seeks to have the interim order of injunction made on 22nd June, 2010, reviewed and the respondent allowed to continue to collect rent. In the alternative the respondent prays that rent be deposited in court pending the hearing and finalization of the appeal.
2. The application is anchored on grounds stated on the motion as well as the affidavit of the respondent’s counsel, Michael Owuor. In the affidavit, counsel for the respondent depones to facts giving rise to the application. He complains that the interim injunction restraining the respondent from levying distress for rent has caused substantial loss to the respondent and that the appellant has not provided any security. He is also apprehensive that he may not be able to recover the loss.
3. The application is opposed through an affidavit sworn by Firoze Hirani on 25th August, 2010 and another affidavit sworn by Julius Ngumbao on 6th September, 2010.
4. I have considered the application as well as the affidavit in support and in reply. I have also had the opportunity to peruse the court record. I do note that the order sought to be reviewed was issued on 22nd June, 2010 pursuant to an application made on the same date. The initial order was an interim order of injunction lasting until 30th June, 2010, when the application dated 22nd June, 2010, was to be heard inter-partes. On 30th June, the hearing of application was adjourned to 7th July, 2010, and the interim orders extended to that date. On7th July, 2010, the application dated 22nd June, 2010, was partly heard and stood over to 21st July, 2010 for further hearing, the interim orders being extended. The orders were further extended to 27th July and then extended again to 3rd November, 2010. Therefore as at the time the respondent brought his application, that is 26th July, 2010, the interim orders were still in force.
5. The position as of now is that the interim orders are still in force until 3rd November, 2010 when further hearing of the application dated 22nd June, 2010, is expected to proceed. It is not therefore correct as was submitted by the appellant that the interim orders are spent. It is evident that the issue of the ownership of the suit property is in dispute and it is on the basis of this that the appellant has obtained interim orders restraining the respondent from levying distress. Nonetheless, since the further hearing of the substantive application is coming up in about a week’s time, it would be appropriate that the issues raised by the respondent be determined in the substantive application. I therefore order that the hearing of the application dated 22nd June, 2010, which was partly heard before my sister Hon. Sitati J. proceed before her on 3rd November, 2010, as scheduled and that the issues canvassed before me be raised before her for determination in the substantive application.
Dated and delivered this 27th day of October, 2010
H. M. OKWENGU
JUDGE
In the presence of: -
Wainaina for the appellant
Owuor for the respondent/applicant
B. Kosgei - Court clerk