[2012] KEHC 5577 (KLR)
The court found that the plaintiffs are tenants of the 5th defendant and have been paying rent to the duly designated director or agent of the 5th defendant. The 1st to 4th defendants are not directors of the 5th defendant and have no authority to demand rent from the plaintiffs. The plaintiffs have established a...
Source-derived case information.
- Citation
- [2012] KEHC 5577 (KLR)
- Parties
- Plaintiff: Vertix Communications Ltd; Plaintiff: Josephat Mathi Ndungu (t/a Ambassadeur Studio); Plaintiff: Dapco Pharmaceuticals (Kenya) Limited; Plaintiff: Dimples Mobiles & Accessories Limited; Plaintiff: Simon Gatembe Mugaa; Plaintiff: Edward Kimari Muturi; Defendant: Francis Chege Maina; Defendant: Joseph Macharia Maina; Defendant: James Kihara Maina; Defendant: Dedan Muthaiga Maina; Defendant: Ambassadeur Investments (K) Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 355 of 2007
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction
- Outcome
- application for temporary injunction allowed
- Judges
- DW Mbuteti
- Legal Topics
- Interlocutory Injunctions, Landlord Tenant Disputes, Harassment of Tenants
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vertix Communications Ltd
Plaintiff
Josephat Mathi Ndungu (t/a Ambassadeur Studio)
Plaintiff
Dapco Pharmaceuticals (Kenya) Limited
Plaintiff
Dimples Mobiles & Accessories Limited
Plaintiff
Simon Gatembe Mugaa
Plaintiff
Edward Kimari Muturi
Plaintiff
Francis Chege Maina
Defendant
Joseph Macharia Maina
Defendant
James Kihara Maina
Defendant
Dedan Muthaiga Maina
Defendant
Ambassadeur Investments (K) Limited
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiffs are entitled to a temporary injunction restraining the 1st to 4th defendants from harassing or intimidating them regarding rent payments.
- 2 Whether the plaintiffs have established a prima facie case with a probability of success for the grant of an injunction.
- 3 Whether the plaintiffs would suffer irreparable harm if the injunction is not granted.
Ratio Decidendi
The court found that the plaintiffs are tenants of the 5th defendant and have been paying rent to the duly designated director or agent of the 5th defendant. The 1st to 4th defendants are not directors of the 5th defendant and have no authority to demand rent from the plaintiffs. The plaintiffs have established a prima facie case with a probability of success, and unless the injunction is granted, they risk losing their business premises or suffering adverse effects on their businesses, which may not be quantifiable in monetary terms. The dispute among the defendants regarding management of the 5th defendant should not affect the plaintiffs' tenancies. The court therefore granted the...
Court Disposition
application for temporary injunction allowed
Orders
- Notice of motion dated 16th September 2011 is allowed as prayed in prayer 2.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO. 399 OF 2011
1. VERTIX COMMUNICATIONS LTD
2. JOSEPHAT MATHI NDUNGU
(t/a Ambassadeur Studio)
3. DAPCO PHARMACEUTICALS (KENYA) LIMITED
4. DIMPLES MOBILES & ACCESSORIES LIMITED
5. SIMON GATEMBU MUGAA
6. EDWARD KIMARI MUTURI...........................................PLAINTIFFS
VERSUS
1. FRANCIS CHEGE MAINA
2. JOSEPH MACHARIA MAINA
3. JAMES KIHARA MAINA
4. DEDAN MUTHAIGA MAINA
5. AMBASSADEUR INVESTMENTS (K) LIMITED..... DEFENDANTS
R U L I N G
1. The Plaintiffs are the tenants of the 5th Defendant occupyingvarious portions of the suit premises. The 5th Defendant appears to be a family company. The 1st to 4th Defendants appear to be members of that family.
2. It further appears that there is a dispute amongst the family members (including the 1st to 4th Defendants) as to who amongst themselves should be collecting rents on behalf the 5th Defendant.
3. It is the Plaintiffs’ case that they have been paying their due rents to the 5th Defendant through it’s duly designated or appointed agent or director. The Plaintiffs further pleads that a search at the Registry of Companies does not disclose any of the 1st to 4th Defendants to be directors of the 5th Defendant.
4. The Plaintiffs’ complaint in this suit is that the 1st to 4th Defendants have undertaken a campaign of harassment and intimidation against them in order to compel them to pay rents to the 1st to 4th Defendants instead of to the duly designated director or agent of the 5th Defendant. They came to court for necessary protection against such harassment or intimidation by appropriate permanent injunction. The Plaintiffs have also sought appropriate relief by way of temporary injunction pending disposal of the suit.
5. The temporary injunction is sought by notice of motion dated 16th September 2011 brought under Order 40, rules 1, 2and 4of the Civil Procedure Rules (the Rules). The application is supported by the affidavit of the 2nd Plaintiff which I have read.
6. The 1st to 4th Defendants have opposed the application by replying affidavit sworn by the 2nd Defendant and filed on 10th November 2011. I have read the same.
7. The 5th Defendant does not oppose the Plaintiffs’ application.
8. The application was canvassed by way of written submissions. I have duly considered them. No authorities were cited.
9. The dispute between the 1st to 4th Defendants and their siblings over the management of the 5th Defendant does not concern the Plaintiffs, and they should not be drawn into that dispute. The Plaintiffs are the 5th Defendant’s tenants. They are not the tenants of the 1st to 4th Defendants; nor are they the tenants of the siblings of the 1st to 4th Defendants or any directors of the 5th Defendant with whom the 1st to 4th Defendants are quarrelling over management of the 5th Defendant. The Plaintiffs ought to be able to enjoy their tenancies without any disturbance occasioned by that dispute.
10. There is evidence before the court that the Plaintiffs have been paying their due rents to the duly designated director or representative of the 5th Defendant, and that at the time of coming to court they did not owe any arrears of rent. Prima facie, such designated director or representative of the 5th Defendant is not any of the 1st to 4th Defendants.
11. I am thus satisfied upon the material now before the court that the Plaintiffs have made out a prima facie case with a probability of success. I am also satisfied that unless the temporary injunction sought is granted the Plaintiffs stand to lose the premises upon which they conduct their businesses. In any case, and at the very least, there will be adverse effects upon their businesses should the acts of the 1st to 4th Defendants complained of continue. The resultant loss may not be readily quantifiable in terms of money.
12. In the event I am satisfied that the notice of motion dated 16th September 2011 has merit. It is hereby allowed as prayed in prayer 2. Costs of the application shall be in the cause. It is so ordered.
DATED AT NAIROBI THIS 13TH DAY OF MARCH 2012
H.P.G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 16TH DAY OF MARCH 2012