[2007] KEHC 1611 (KLR)
The court found that the appellant failed to provide any evidence of payment of the alleged rent arrears, both in the lower court and on appeal. The respondents, on the other hand, produced evidence of demands for arrears. The lower court's finding that the appellant had not demonstrated a prima facie case with a...
Source-derived case information.
- Citation
- [2007] KEHC 1611 (KLR)
- Parties
- Appellant: Margaret Murphy; Respondent: Godfrey Ngure Mburu (T/A Haki Traders); Respondent: Quinma Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 438 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application for Injunction Pending Appeal
- Outcome
- application dismissed with costs to the respondents
- Legal Topics
- Interlocutory Injunctions, Distress for Rent, Landlord Tenant Disputes, Prima Facie Case, Adequacy of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Margaret Murphy
Appellant
Godfrey Ngure Mburu (T/A Haki Traders)
Respondent
Quinma Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application for Injunction Pending Appeal
Legal Issues
- 1 Whether the appellant demonstrated a prima facie case with a probability of success to warrant a prohibitory injunction pending appeal.
- 2 Whether damages would be an adequate remedy for the appellant if she succeeded in her suit.
Ratio Decidendi
The court found that the appellant failed to provide any evidence of payment of the alleged rent arrears, both in the lower court and on appeal. The respondents, on the other hand, produced evidence of demands for arrears. The lower court's finding that the appellant had not demonstrated a prima facie case with a probability of success was upheld. Furthermore, the court held that any loss suffered by the appellant could be adequately compensated by an award of damages should she ultimately succeed. Therefore, the application for a prohibitory injunction pending appeal lacked merit and was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs to the respondents
Orders
- The application for prohibitory injunction is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 438 of 2006
MARGARET MURPHY ……...............................................................……………APPELLANT
V E R S U S
1. GODFREY NGURE MBURU (T/A HAKI TRADERS)
2. QUINMA LTD ………..........................................................…..………..….RESPONDENTS
R U L I N G
The Appellant herein was a tenant in the residential premises managed by the 2nd Respondent. The 2nd Respondent (through the 1st Respondent, an auctioneer) levied distress against the Appellant for arrears of rent amounting to KShs. 142,000/00. In the process the Appellant’s household goods were attached, and she was locked out. She filed suit in the lower court seeking the reliefs of permanent injunction to prevent sale of those goods and for an order for the premises to be opened. With the plaint she also filed an application for temporary orders pending disposal of the suit.
On 22nd June, 2006 the lower court refused the application upon the grounds that the Appellant did not demonstrate a prima facie case with a probability of success; it also found that the Appellant could be adequately compensated by damages in the event that she succeeded in her suit. This appeal is against that ruling of the lower court.
Together with the memorandum of appeal the Appellant filed an application by notice of motion dated 30th June, 2006 under Order 41, rule 4 of the Civil Procedure Rules (the Rules) seeking the main order of prohibitory injunction to restrain the Respondents from selling the Appellant’s attached goods pending disposal of the appeal.
I have read the supporting and replying affidavits. I have also considered the submissions of the learned counsels appearing. No authorities were cited. I have, further, perused the application before the lower court and the ruling thereon. No new material has been placed before this court by the Appellant. She placed before the lower court no evidence of payment of rent to back up her contention that she had paid all rents due. On the other hand, the 2nd Respondent placed before the lower court evidence of all the demands for arrears of rent made. The lower court did not believe the Appellant’s allegation that evidence of her payment of the arrears of rent had been left in the premises when the Respondents locked them up.
Just as in the lower court, the Appellant has not placed before this court any evidence of payment of the arrears of rent demanded by the 2nd Respondent. Looking at all the material placed before the court, it is unlikely that the Appellant had paid the arrears of rent. I am thus not satisfied that the Appellant’s appeal has any reasonable chances of success. Besides, given the nature of the Appellant’s claim in the lower court, I am satisfied that an award of damages will adequately compensate the Appellant should she succeed in her appeal and eventually in her suit.
In the result, I find no merit in the present application. It is hereby dismissed with costs to the Respondents. Orders accordingly.
DATED AT NAIROBI THIS 8TH DAY OF NOVEMBER, 2007.
H. P. G. WAWERU
J U D G E
DELIVERED THIS 9TH DAY OF NOVEMBER, 2007