[2003] KEHC 842 (KLR)
The court found that it would be unfair for the respondent to levy distress on the applicant given that both parties own the property as tenants in common. The court held that the balance of convenience favoured granting an injunction to restrain the defendant from levying distress until the main suit is determined,...
Source-derived case information.
- Citation
- [2003] KEHC 842 (KLR)
- Parties
- Plaintiff: Shurishchandra Bharmal Shah; Defendant: Prafullchand Bharmal M. Shah
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1831 of 2002
- Procedural Posture
- Civil Case / Interlocutory Application for Injunction
- Outcome
- Application for injunction allowed pending the outcome of the main suit.
- Judges
- RM Mutitu
- Legal Topics
- Interlocutory Injunctions, Co Ownership Disputes, Distress for Rent, Tenancy in Common
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shurishchandra Bharmal Shah
Plaintiff
Prafullchand Bharmal M. Shah
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the defendant has capacity to levy distress for revenue against the plaintiff on jointly owned property.
- 2 Whether an injunction should issue to restrain the defendant from levying distress pending the determination of the main suit.
Ratio Decidendi
The court found that it would be unfair for the respondent to levy distress on the applicant given that both parties own the property as tenants in common. The court held that the balance of convenience favoured granting an injunction to restrain the defendant from levying distress until the main suit is determined, as unilateral action by one co-owner could prejudice the rights of the other. The court thus allowed the application for an injunction, pending the outcome of the main suit.
Court Disposition
Application for injunction allowed pending the outcome of the main suit.
Orders
- An injunction is granted restraining the defendant from levying distress against the plaintiff pending the determination of the main suit.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OK KENYA
IN THE HIGH COURT OF KENYA AT NAIROBICIVIL CASE NO. 1831 OF 2002SHURISHCHANDRA BHARMAL SHAH …………………..PLAINTIFFVERSUSPRAFULCHAND BHARMAL M. SHAH ………………….DEFENDANTR U L I N G
The applicant has brought this application seeking an injnction to restrain the defendant from levying distress under Order XXXIX Rule 1 and 2 of the Civil Procedure Rules. The plaintiff/applicant filed in an affidavit in support of the application while the respondent opposed the application. According to the applicant the two parties are brothers owning the property in dispute. The applicant has challenged the capacity of the defendant/respondent to levying distress for revenue against him since the property does not attract revenue.
Mr. Mugabi for the respondent argued that the respondent/defendant has capacity to levy distress against the applicant since the plaintiff has denied the respondent access into the premises.
I have considered this application carefully. In my own considered view it would be unfair for the respondent to levy distress on the applicant, yet the two own the property as tenants in common.
I therefore allow the prayers sought pending the outcome of the main suit. Order accordingly.
R.M. MUTITUJUDGE14. 1.2003
Delivered in open court in the presence of Mugabi for the defendant and Aswao for the plaintiff.
R.M. MUTITUJUDGE14. 1.2003