[2004] KEHC 507 (KLR)
The court held that since the applicant was in arrears of rent, the respondent was entitled to levy distress, and the applicant, as tenant, is responsible for the costs of distress, including auctioneer's charges. The court granted the order sought by the applicant for release of goods, but made it conditional upon...
Source-derived case information.
- Citation
- [2004] KEHC 507 (KLR)
- Parties
- Appellant: Kenya Tea Development Agency Ltd; Respondent: Kimani Kinyanjui
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 715 of 2001
- Procedural Posture
- Civil Appeal / Ruling
- Outcome
- Order granted conditionally; applicant to pay auctioneer's charges before release of goods; costs to respondent.
- Judges
- PJ Ransley
- Legal Topics
- Distress for Rent, Landlord Tenant Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Tea Development Agency Ltd
Appellant
Kimani Kinyanjui
Respondent
Procedural Posture
Civil Appeal / Ruling
Legal Issues
- 1 Who is liable to pay the costs of distress levied by the respondent against the applicant's goods.
- 2 Whether the applicant, as tenant in arrears, should bear the auctioneer's charges before release of goods.
Ratio Decidendi
The court held that since the applicant was in arrears of rent, the respondent was entitled to levy distress, and the applicant, as tenant, is responsible for the costs of distress, including auctioneer's charges. The court granted the order sought by the applicant for release of goods, but made it conditional upon payment of the auctioneer's charges. The costs of the application were awarded to the respondent.
Court Disposition
Order granted conditionally; applicant to pay auctioneer's charges before release of goods; costs to respondent.
Orders
- Order (a) of the Chamber Summons of 22nd November 2004 granted on condition that the applicant pays the auctioneer's charges before release of goods.
- Costs of the application awarded to the respondent.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENAY AT NAIROBI
Civil Appeal 715 of 2001KENYA TEA DEVELOPMENT AGENCY LTD………..APPELLANT
VERSUS
KIMANI KINYANJUI………………………………….RESPONDENT
RULING
The question arises as to who should pay the costs of distress levied by the Respondent against the Applicant’s goods. The proclamation is for Kshs 222,160 and Auctioneer fees to be advised.
The Applicant admits he was in arrears and paid a sum of Kshs 204,819 and Kshs 70,000 as set out in his Further Affidavit of the 2nd December 2004.
The right of the Respondents to levy distress is contained in my judgment in HCCC No 114 of 4004 and the case of Riungu Vs Rungu Civil Appeal No. 34 of 1989.
If the tenant is in arrears of rent, the landlord is entitled to distress and the tenant should bear the costs.
In this case, it is for the Applicant to pay. I grant order (a) of the Chamber Summons of the 22nd November 2004 subject to and on condition that the Applicant pays the auctioneers charges before release of the goods. Costs Respondent of the Application.
DATED AND DELIVERED ON 9TH DECEMBER 2004.
P.J RANSLEYJUDGE