[2019] KEHC 1552 (KLR)
The court found that the appellant, as landlord, was aware that the principal tenant had sublet the premises to the respondents and that the goods attached belonged to the respondents, not the tenant. The appellant did not deny that the respondents. goods were attached for rent arrears owed by the principal tenant,...
Source-derived case information.
- Citation
- [2019] KEHC 1552 (KLR)
- Parties
- Appellant: Odhiambo Ambala T/A Ambala Complex; Respondent: Victor Omondi Midigo; Respondent: Anne Atieno Odunga
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 116 of 2018
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal dismissed with costs to the respondents.
- Judges
- TW Cherere
- Legal Topics
- Landlord Tenant Disputes, Distress for Rent, Injunctive Relief, Subtenancy Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Odhiambo Ambala T/A Ambala Complex
Appellant
Victor Omondi Midigo
Respondent
Anne Atieno Odunga
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the attachment of the respondents. goods by the appellant was lawful and proper under the circumstances.
- 2 Whether the respondents were entitled to injunctive relief restraining the appellant from interfering with their property.
- 3 Whether the lower court properly exercised its discretion in granting the orders sought by the respondents.
Ratio Decidendi
The court found that the appellant, as landlord, was aware that the principal tenant had sublet the premises to the respondents and that the goods attached belonged to the respondents, not the tenant. The appellant did not deny that the respondents. goods were attached for rent arrears owed by the principal tenant, nor did he controvert the respondents. evidence that they had been paying rent to the tenant. The court held that the respondents had established a prima facie case for injunctive relief, as the attachment was effected without proper notice to the actual owners of the goods and in circumstances where the appellant knew the goods did not belong to the tenant. The lower court...
Court Disposition
Appeal dismissed with costs to the respondents.
Orders
- The appeal is disallowed.
- Costs of the appeal are awarded to the respondents.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
CIVIL APPEAL NO. 116 OF 2018
BETWEEN
ODHIAMBO AMBALA T/A AMBALA COMPLEX..............................APPELLANT
AND
VICTOR OMONDI MIDIGO & ANNE ATIENO ODUNGA..........RESPONDENTS
(Being an Appeal from the Ruling and Order in Winam SPMCC 95 of 2018 by Hon. B. Kasavuli (SRM) dated 22nd October, 2018)
JUDGMENT
1. Victor Omondi MidigoandAnne Atieno Odunga(Respondents) on 14. 08. 18 filed suit against Odhiambo Ambala T/A Ambal Complex(Appellant) in the lower court claiming:
1) A permanent injunction restraining the Defendant from attaching their properties
2) A declaration that the attachment of the Plaintiffs’ properties was unlawful and illegal since mandatory notice was not served
3) Costs
4) Any other relief
2. Instantaneously with the plaint, the Respondents filed a notice of motion dated 14. 08. 18 seeking orders THAT: -
1) Pending the hearing and determination of the suit, an order do issue restraining the Defendant, agents and/or employees from repossessing and or in any manner interfering with the Plaintiffs’ properties
2) A declaration that the attachment of the Plaintiffs’ properties was unlawful and illegal since mandatory notice was not served
3) Costs
3. The application was vehemently opposed by the Defendant by his affidavit sworn on 07. 09. 18 and filed on even date.
4. The court heard both parties and by a ruling dated 22. 10. 18 directed the Defendant, agents and/or employees to unconditionally release the cosmetic products and assorted beauty products proclaimed on 10. 07. 17 to the Plaintiffs.
The Appeal
5. The Appellant being dissatisfied with the lower court’s decision preferred this appeal and on 16. 05. 19 filed the Memorandum of Appeal dated 15. 11. 19 setting out 8 grounds of appeal mainly that the Respondents’ case was not proved on a balance of probabilities
Analysis
6. As a first appellate court, the duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. As was espoused in the Court of Appeal case of Selle & Another v Associated Motor Boat Co. Ltd & Another (1968) EA 123,my duty is to evaluate and re-examine the evidence adduced in the trial court in order to reach a finding, taking into account the fact that this court had no opportunity of hearing or seeing the parties as they testified and therefore, make an allowance in that respect.
7. When the appeal came up for mention on 14th February, 2019, I directed the parties to canvass it by way of written submission which they dutifully filed.
8. I have considered the evidence contained in the affidavits on record. It is on record that the principal tenant of the suit premises was one Samson Ogola Oyala (tenant). It is also on record that the Appellant had knowledge that the said tenant had sublet the premises to the Respondents. That the Respondents’ averments that they had been paying rent to the said tenant was not controverted.
9. By a letter dated 21,03. 17, the Appellant demanded that the tenant terminates the sub tenancy and demanded rent for March, 2017.
10. By a letter dated 06. 05. 17, the Appellant instructed his advocate to demand Kshs. 158,500/- being rent arrears and unpaid utility bills from the tenantand to instruct an auctioneer to levy distress if no payment was made.
11. By a letter dated 10. 05. 17, the Appellant’s advocate instructed Demigen Auctioneers to levy distress for Kshs. 118,500/- against the tenant.
12. By a proclamation dated 10. 05. 17, the auctioneer proclaimed the Respondents goods.
13. By a notice posted on 03. 11. 17, the tenant moved from the lease premises and by a letter dated 04. 12. 17, the Appellant demanded unpaid rent for the month of November, 2017 and restoration of the lease premises which was allegedly damaged which was assessed at Kshs. 267,000/- by letter dated 04. 12. 17.
14. I have considered the appeal in the light of pleadings, the evidence and submissions on record. The Appellant does not deny that Respondent’s goods were attached for non-payment of rent by the tenant. It was within the Appellant’s knowledge that the said goods did not belong to the tenant who had indeed already moved from the premises, but to the Respondents.
15. From the foregoing, I find that the Respondents had met the threshold in Giella vs Cassman Brown Co. Ltd 1973] EA 358for issuance of an injunction having demonstrated that they had a prima facie case with probability of success.
16. The issue of whether or not the attached goods were worthy Kshs. 2 million is a matter of evidence that the Respondent has to prove at the opportune time.
DISPOSITION
17. In the result, I find that this appeal has no merit and it is disallowed with costs to the Appellant.
DELIVERED AND SIGNED IN KISUMU THIS28thDAY OFNovember2019
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant- Okodoi/Basil
Appellant- Present in person
1st Respondent -Present in person
2nd Respondent -Absent