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ELCPartially AllowedHigh Court Civil Case at Kisii (Notice of Motion dated 29th November 2011 in the principal suit)· [2016] KEELC 821 (KLR)

Tenderwood Industries Ltd v Rispa Kerubo Onsase & another [2016] KEELC 821 (KLR)

High Court of Kenya at Kisii
13 May 2016
JMJ. M. Mutungi
3,659 words in judgment
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The bottom line

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A Kenyan court refused to reinstate an evicted tenant but ordered the landlord to release a detained vehicle held without lawful cause.

What this practically means

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Executive summary

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This ruling by J. M. Mutungi J of the High Court at Kisii, delivered on 13th May 2016, determines the plaintiff's Notice of Motion dated 29th November 2011 in a landlord and tenant dispute over LR No. Kisii Municipality/Block II/27. The plaintiff, a tenant of the 1st defendant, had erected a perimeter wall and permanent structures without the 2nd defendant's approval, prompting a demolition notice. After the defendants demolished the structures in disobedience of an interim injunction, both were convicted of contempt and fined. The plaintiff then sought mandatory injunction orders reinstating it to the premises, a temporary injunction restraining termination of the tenancy, and restoration of its motor vehicle KBH 757C, which had been barricaded within the premises. The court held that the prayer for mandatory restoration was res judicata, having been sought and not granted in the earlier contempt application of 22nd February 2011, the plaintiff having forfeited the opportunity to seek an order to purge the contempt. In any event, on the contested facts - disputed tenancy termination, rent arrears and lack of development permission under section 33 of the Physical Planning Act - the plaintiff failed to establish special circumstances warranting a mandatory injunction, and a temporary injunction could not issue because the plaintiff had already been ejected. However, the court found the 1st defendant's detention of the vehicle unlawful, absent a valid levy of distress or prior demand, and directed its unconditional release. The application was otherwise disallowed with each party bearing their own costs.

Key legal issues

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01

Res judicata - whether the mandatory injunction prayer could be re-litigated after the contempt application

Holding

The prayer for mandatory restoration to the premises is res judicata as it was directly and substantially in issue in the earlier contempt application dated 22nd February 2011, in which it was not granted and therefore deemed dismissed

Reasoning

The court applied section 7 of the Civil Procedure Act and the Henderson v Henderson principle as adopted in Rose Njeri Munoru. The plaintiff could have invited the judge in the contempt application to order the defendants to purge their contempt by reinstating the plaintiff; having failed to do so, the plaintiff could not reopen the same issue in a fresh application.

p. 5
02

Whether the plaintiff satisfied the conditions for a mandatory injunction at the interlocutory stage

Holding

No - the plaintiff did not establish a prima facie case or special circumstances, and the facts were disputed, so a mandatory injunction would not issue even on merit

Reasoning

Relying on Halsbury's Laws Vol. 24, Locabail International Finance and Shariff Abdi Hassan, the court held a mandatory injunction requires special circumstances and a clear case. Here the issues of tenancy termination, rent arrears, and construction without development permission under section 33 of the Physical Planning Act were contested, so the plaintiff's case was not plain and obvious.

p. 5
03

Lawfulness of the 1st defendant's retention of the plaintiff's motor vehicle KBH 757C

Holding

The detention of the vehicle was unlawful; the 1st defendant showed no valid levy of distress or prior demand for rent arrears, and the vehicle was to be unconditionally released

Reasoning

The 1st defendant did not deny barricading the vehicle but claimed a lien for rent arrears. The court found no valid levy of distress, no demonstration that the vehicle was amenable to distress, and no prior demand for the arrears, rendering the retention without lawful cause.

p. 6

Legal principles established

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  • A prayer sought in an earlier application but not granted is deemed dismissed and renders a subsequent identical prayer res judicata
  • A party has an unqualified right to withdraw an application not yet heard inter partes under Order 25 of the Civil Procedure Rules, save for the defendants' entitlement to costs
  • Detention of a tenant's property as purported lien for rent arrears is unlawful absent a valid levy of distress and prior demand

Court orders

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  1. 1.The plaintiff's application dated 29th November 2011 disallowed save for the direction releasing motor vehicle KBH 757C
  2. 2.Motor vehicle registration number KBH 757C to be unconditionally released to the plaintiff if still being held by the 1st defendant
  3. 3.No order for costs; each party to bear their own costs of the application
Jurisdiction invoked
Inherent jurisdiction of the High Court under the Civil Procedure Act (Cap 21) and Order 25 of the Civil Procedure Rules; interlocutory application in a first-instance landlord and tenant suit

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Tenderwood Industries Ltd v Rispa Kerubo Onsase & another [2016] KEELC 821 (KLR)", Case Analysis (2016). High Court Civil Case at Kisii (Notice of Motion dated 29th November 2011 in the principal suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/821/eng@2016-05-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.