[2006] KEHC 3254 (KLR)
The court found that the applicant failed to disclose a previous application for injunction in the lower court, which was dismissed, thereby disentitling it to equitable relief. However, considering the potential harm to the applicant's business and the respondent's suggestion, the court granted conditional relief....
Source-derived case information.
- Citation
- [2006] KEHC 3254 (KLR)
- Parties
- Plaintiff: Lusaka Road Auto Garage Limited; Defendant: Khadija Abdulkarim Pasta
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 112 of 2005
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction (chamber Summons)
- Outcome
- Application allowed conditionally; injunction granted subject to deposit and payment terms.
- Legal Topics
- Landlord Tenant Disputes, Injunctive Relief, Distress for Rent, Non Disclosure, Equitable Remedies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lusaka Road Auto Garage Limited
Plaintiff
Khadija Abdulkarim Pasta
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction (chamber Summons)
Legal Issues
- 1 Whether the plaintiff is entitled to an injunction restraining the defendant from levying distress for rent on the premises.
- 2 Whether the plaintiff's expenditure on repairs can be offset against rent as claimed.
- 3 Whether non-disclosure of previous proceedings disentitles the plaintiff to equitable relief.
Ratio Decidendi
The court found that the applicant failed to disclose a previous application for injunction in the lower court, which was dismissed, thereby disentitling it to equitable relief. However, considering the potential harm to the applicant's business and the respondent's suggestion, the court granted conditional relief. The injunction was allowed on the condition that the applicant deposits KES 1,260,000 in a joint account held by both parties' advocates and continues to pay rent into that account monthly. Failure to comply within 30 days would entitle the landlord to levy distress. The court emphasized that the remedy for illegal distress is damages, and that the applicant's non-disclosure...
Court Disposition
Application allowed conditionally; injunction granted subject to deposit and payment terms.
Orders
- Applicant to deposit KES 1,260,000 in a joint account in the names of both parties' advocates within 30 days.
- Applicant to pay current rent monthly into the joint account.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL SUIT NO. 112 OF 2005
LUSAKA ROAD AUTO GARAGE LIMITED ……………………....…………PLAINTIFF
VERSUS
KHADIJA ABDULKARIM PASTA & OTHERS ………………………DEFENDANTS
R U L I N G
Chamber Summons dated 3/6/05 seeks orders to restrain Respondents from entering the premises known MBS/BlockXLVI)45 B to remove any goods therein.
The claim as drawn in the plaint seeks to restrain by injunction the defendants from levying distress for Rent on the ground that Defendants/Respondents entered into an agreement whereby the Plaintiff/Applicant was to carry out repairs to a landlord premises to enable the Applicant to obtain a trading license and deduct expense from rents.
The Applicant carried out all the needed renovations repairs and obtained necessary consent at a total cost of Shs.1,180,000/-. The application is opposed. There is non-disclosure of previous application in RMCC 3230/2004 which was dismissed with costs.
Khadija Abdulkarim Pasta is only one defendant “Others” must be disclosed. No proof of agreement to offset rents with costs of repairs and no proof of costs is exhibited. Signed agreements demands payment quarterly without deductions.
I have perused the material laid before the court. I am satisfied that the defendant Khadija Abdulkarim Pasta is the proper defendant being one of the administrators of deceased landlord.
However, I have noted the plea of the Applicant that distress would affect the interest of his customers and this could very well drive him out of business which is not the intention of the parties when they entered into an agreement of lease.
However, it cannot be said that on matters of landlord and tenant the landlord has powers to destrain for rent whenever there is arrears outstanding. The remedy of illegal distress is by Act (Distrain for Rent Act Cap.293) specified to be in damages. The Defendant says that it is possible to pay off the Applicant whatever damages, as there are sufficient assets to pay.
However subject to prove the expenditure incurred by the tenant in the circumstances should be taken into account. This court has noted that the applicant is guilty of non-disclosure. That he had filed for injunction in lower court, which was dismissed. This act disentitles the applicant to any equitable remedy.
Nevertheless in the circumstances of this case the Respondent has suggested a remedy which I found fair in the circumstances. I allow the application on condition that the Applicant shall deposit in a joint account in a reputable bank in the names of the two advocates for the parties Shs.1,260,000/- and shall commence the payment rents into that account monthly the Current Rent payable by him.
The deposit shall be made with the next 30 days. Failing which the landlord shall be entitled to levy distress. Costs of application to Respondent.
Delivered and dated at Mombasa this 18th day of January 2006.
J. KHAMINWA
J U D G E
18/1/06
Khaminwa, J
Kazungu – clerk
Ms. Kasmani
No appearance for other party though served.
Ruling read out in court.
KHAMINWA, J