[2004] KEHC 2249 (KLR)
The court found that the appellant had demonstrated strong chances of success in the appeal and that the extension of ex-parte orders beyond 14 days was improper under Order 39(3)(2) of the Civil Procedure Code. The court further held that the law does not permit an injunction to restrain a landlord from levying...
Source-derived case information.
- Citation
- [2004] KEHC 2249 (KLR)
- Parties
- Appellant: Kabundu Holdings Ltd; Respondent: Ali K. Ahmed t/a Sky Club Restaurant
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 48 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Stay of lower court injunction orders granted; proceedings in lower court stayed pending appeal.
- Legal Topics
- Stay of Execution, Landlord Tenant Disputes, Distress for Rent, Injunctions, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kabundu Holdings Ltd
Appellant
Ali K. Ahmed t/a Sky Club Restaurant
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the lower court's injunction restraining the landlord from levying distress should be stayed pending appeal.
- 2 Whether the extension of ex-parte orders beyond 14 days under Order 39(3)(2) Civil Procedure Code was proper.
- 3 Whether the remedy for wrongful distress is damages and not an injunction.
Ratio Decidendi
The court found that the appellant had demonstrated strong chances of success in the appeal and that the extension of ex-parte orders beyond 14 days was improper under Order 39(3)(2) of the Civil Procedure Code. The court further held that the law does not permit an injunction to restrain a landlord from levying distress for rent, and that the appropriate remedy for wrongful distress is damages. Consequently, the court allowed the stay of the lower court's injunction orders, enabling the landlord to exercise the right to levy distress, and stayed all proceedings in the lower court case pending the determination of the appeal.
Court Disposition
Stay of lower court injunction orders granted; proceedings in lower court stayed pending appeal.
Orders
- Stay of the lower court injunction orders against the applicant landlord is granted.
- The applicant is not restrained from levying distress for rent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL APPEAL NO. 48 OF 2004
KABUNDU HOLDINGS LTD…………………………….APPELLANT -V E R U S
ALI K. AHMED t/a SKY CLUB RESTAURANT…………….RESPONDENT
R U L I N G
The Appellant has filed an appeal against the order of Lower Court (Hon. Jaden in CMCC.706/04). He now seeks to stay order dated 10/2/04 which was extended for a further 14 days on 24/2/04. The grounds advanced are that the Order 39(3)(2) Civil Procedure Code extension of ex-parte orders for more than 14 days and that no injunction is available against a landlord exercising his right to levy distress (Cap.293) and remedy for wrongful distress is in damages and that the tenancy between the parties is not controlled tenancy and that the Applicant has good chance of success in appeal. And Appeal will be rendered nugatory.
I have examined the record in the lower court. I find that in the affidavit Ali K. Ahmed the tenant sworn on 10/2/2004 he swears that there was rent due on from November 2003 and money was due Kshs.146,000/- and now the other quarter has come and gone and no rent has been paid.
I am of the view that there are strong chances of success in the appeal before High Court as alleged by Applicant.
I therefore allow the stay of the lower court injunction orders against the Applicant Landlord, meaning that the orders shall not restrain the Applicant from levying distress.
In case the Respondents are successful in the Appeal they will recover by the remedy of damages.
For the interest of justice exercising my inherent powers of court I hereby stay all proceedings henceforth in the said Lower Court Case No.706/2004 until determination of appeal.
Orders accordingly.
Costs in the cause.
Dated at Mombasa this 6th day of May, 2004.
JOYCE KHAMINWA
J U D G E