[2022] KEHC 16286 (KLR)

Mutinda v Kahara & 8 others (Miscellaneous Application E206 of 2022) [2022] KEHC 16286 (KLR) (Civ) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16286 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application E206 of 2022

JN Mulwa, J

December 15, 2022

Between

Michael Mutinda

Applicant

and

David Mburu Kahara

1st Respondent

Dickson Rivi Mojo t/a Dikwa Auctioneers

2nd Respondent

John Mukui (OCS, Riruta) & 6 others

3rd Respondent

Ruling

1. Michael Mutinda Mutemi the applicant in the application dated March 23, 2022 describes himself as a tenant of the 1st respondent, David Mburu Kahara the landlord in a property known as Dagoretti/Riruta /6229-house 7 for the period October 2021 up to March 21, 2022 when the landlord (1st respondent) and the 2nd respondent, the landlords authorized auctioneers, aided by 3rd to the 9th respondents purported to evict him from the said house, and during the exercise damaged , stole and carted away his properties including motor vehicles on the March 21, 2022.

2. The application is premised on section 3 and 3A of the Civil Procedure Act and article 50(1) of the Constitution. He seeks very many orders but principally orders of injunction against the respondents by their agents or servants; jointly or severally from advertising for sale the seized goods, or transferring the same pending the hearing and determinations of the application. As for the vehicles he prays that the same be safely transferred to the compound of Riruta police station as they are subject of criminal proceedings. It is a further claim by the applicant that there is pending at the Rent Restriction Tribunal Cause No E 194/2022 over the same subject matter that is yet to be determined.

3. On the May 17, 2022 interim orders of injunction were issued by the court (Chitebwe J) to last up to the May 16, 2022. The court record does not show extension of the injunction orders.

4. Upon service, the 1st respondent filed a replying affidavit as well as a notice of preliminary objection on the June 13, 2022, on grounds that: -(1)There is pending an ongoing Rent Restriction Tribunal Cause No E 194/2022.

(2)That the dispute revolves around a rental dispute between the applicant as a tenant and the 1st respondent as a landlord upon which the tribunal had made orders to levy distress if the tenant failed to pay outstanding arrears of Kshs 22,500/=

(3)That the tenant failed to pay his and by coming to this court by the instant application is an attempt to frustrate the 1st respondents from executing to realise the rent arrears.

(4)That the applicant has not made out a prima facie case to warrant the orders he seeks.

5. In response to the preliminary objection the applicant filed a replying affidavit sworn on the July 10, 2022 as well as submissions. His response is that the Rent Restriction Tribunal Cause E 194/2022 is dead in view of the eviction from the suit property on the March 21, 2022 and therefore the tribunal lacks jurisdiction as the relationship of landlord and tenant no longer exists; that the tribunal pronounced itself on the May 19, 2022 on the claim.He therefore submits that the claim before this court by this application is merited and properly before the court.

6. The applicant withdrew his case against the 6th and 9th respondent on the June 15, 2022.

7. The honourable the Attorney General entered appearance for the 3,4,5, 6, 7 & 8 respondents on the July 1, 2022.

8. The 2nd respondent appointed Mungai Githinji & Co Advocates to act for him by a notice of appointment of advocates dated October 6, 2022.

9. On the October 6, 2022 the 2nd respondent filed an application under certificate of urgency acknowledging that the ruling to the instant application is scheduled for the December 15, 2022; and also raised a preliminary objection on this court’s jurisdiction to entertain the substantive application; on grounds that;a)The application herein emanates from a dispute in the Rent Restriction Tribunal Cause No E 194/2022. b)That on the February 17, 2022 the tribunal issued the following orders against the applicant:(i)spent(ii)That the defendant/tenant is to pay the outstanding arrears of Kshs 22,500/= within 30 days without fail.(iii)That in default, the plaintiff/landlord is granted leave to levy distress in order to recover the outstanding arrears through a licensed auctioneer.(iv)That the defendant/tenant is to be served for inter-partes hearing within 30 days.

10. The 2nd respondents further states that the tenant (applicant) never appealed against the court orders or complied with the said orders; and therefore in default the landlord undertook the distress for rent on the March 21, 2022 in compliance with the court orders.

11. I have considered the matter, and specifically the tribunal orders issued on the February 17, 2022 and reproduced by the 2nd respondent. I also note that that the applicant/tenant in the instant application withheld these orders from this court, but which have been laid bare by the 2nd respondent in his application dated October 6, 2022.

12. As the 2nd respondent’s application was filed while the matter is pending for ruling, the parties thereto must be a served with the application to accord them a chance to respond to the issues raised therein. It is only after the respondent parties have been given that chance that the court may then proceed to hear them, and eventually prepare a well informed decision.That being the case, the court issues the following directions:1)The ruling on the application dated March 23, 2022 is hereby arrested.2)That the application dated October 6, 2022 shall be served upon all the parties within 10 days of this ruling who shall be at liberty to file their responses and serve within 14 days, after such service.3)That the application shall be listed for mention for directions on the January 25, 2023.

13. Orders accordingly.

DELIVERED, DATED AND SIGNED ON THE 15TH DAY OF DECEMBER, 2022. J.N. MULWAJUDGE