Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment· [2017] KEELC 1803 (KLR)

Namsi Interiors Limited v Sameer Business Park Limited [2017] KEELC 1803 (KLR)

High Court of Kenya
22 September 2017
MGMARY M. GITUMBI
2,029 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court refused to stop a rent-distress auction because the tenant admitted the arrears and had no arguable defence.

What this practically means

#

Executive summary

#
This was an interlocutory Notice of Motion dated 13th April 2016 in which the Plaintiff, a tenant of the Defendant at Sameer Business Park along Mombasa Road, Nairobi, sought a temporary injunction restraining the Defendant from selling the Plaintiff's movable assets by public auction on 14th April 2016 pursuant to an advertisement in the Daily Nation of 7th April 2016, pending hearing of the suit. The Plaintiff alleged that the Defendant had locked the demised premises with its stock inside in November 2015 and that no proclamation and forfeiture notice had been served, rendering the intended auction illegal. The Defendant, through its Finance Officer, replied that the Plaintiff was in rent arrears of Kshs. 8,643,299.55 as at 12th November 2015; that a demand and distress notice was issued and served on 7th October 2015; that the Plaintiff illegally locked the premises to frustrate the right of distress; and that the auctioneer proclaimed the goods and issued the requisite notices after obtaining a court order to access the premises. Applying the Giella v Cassman Brown conditions as restated in Mrao v First American Bank and Afraha Education Society, and guided by Airland Tours & Travels Ltd v National Industrial Credit Bank on the limits of interlocutory findings, the court held that the Defendant had a statutory right of distress under sections 3 and 4 of the Distress for Rent Act; the Plaintiff admitted the arrears and had neither paid nor replevied the distrained goods. The Plaintiff therefore failed to establish a prima facie case with probability of success, and the remaining conditions were not considered. The application was dismissed with costs to the Defendant on 22nd September 2017.

Key legal issues

#
01

Whether the Plaintiff established a prima facie case with probability of success

Holding

No - the Defendant had a statutory right to distrain for rent, the Plaintiff admitted arrears of Kshs. 8,643,299.55, and had neither paid nor replevied the distrained goods

Reasoning

Sections 3(1) and 4(1) of the Distress for Rent Act entitle a landlord to distrain for rent in arrear and, if the tenant neither pays rent plus costs nor replevies within fourteen days, to sell the distrained goods. The Plaintiff admitted the arrears and did not rebut the statutory right, so no genuine and arguable case was shown.

p. 3
02

Whether the other Giella conditions (irreparable injury, balance of convenience) required consideration

Holding

No - the conditions are sequential and the failure of the first condition obviates consideration of the rest

Reasoning

Following Kenya Commercial Finance Co. Ltd v Afraha Education Society and Nguruman Ltd v Jan Bonde Nielsen, where no prima facie case is established the court need not address irreparable injury or balance of convenience, as these are subordinate and sequential steps in the interlocutory injunction inquiry.

p. 4

Legal principles established

#
  • The Giella v Cassman Brown conditions for an interlocutory injunction are sequential; failure of the first condition (prima facie case) disposes of the application
  • A landlord in rent arrears has the remedy of distress for rent under sections 3 and 4 of the Distress for Rent Act and may sell distrained goods where rent and costs are not paid or the goods replevied within the statutory period

Court orders

#
  1. 1.The Notice of Motion dated 13th April 2016 dismissed with costs to the Defendant

Authorities

#

Legislation

  • Distress for Rent ActSections 3 and 4 (including 3(1), 4(1) and 4(2))

Cases cited (5)

  • GIELLA versus CASSMAN BROWN
    (1973) EA 358
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
  • Airland Tours & Travels Ltd versus National Industrial Credit Bank
    Milimani High Court Civil Case No. 1234 of 2002
  • Kenya Commercial Finance Co. Ltd versus Afraha Education Society
    (2001) 1 EA 86
  • Nguruman Ltd versus Jan Bonde Nielsen
    (2014) eKLR
Jurisdiction invoked
Inherent jurisdiction of the High Court to grant interlocutory injunctions (unspecified in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Namsi Interiors Limited v Sameer Business Park Limited [2017] KEELC 1803 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1803/eng@2017-09-22

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