Kulthum Suleiman Khamis v Registered Trustees, Kenya Ports Authority Pension Scheme & 2 others [2018] KEELC 2714 (KLR)
The bottom line
#A Kenyan court refused to stop a landlord's auctioneer from selling a tenant's goods because the rent distress followed proper legal procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
No. The tenancy, rent arrears and the Plaintiff's own letters offering to surrender the premises showed the distress was lawful; the Giella test was not satisfied.
The court found it undisputed that the Plaintiff was a tenant in arrears. Her letters (Annexures SM7–SM15) showed awareness of the landlord's desire to recover the house and proposals to pay and surrender it. The 3rd Defendant proclaimed the goods, gave the statutory 14-day notice, obtained break-in orders in Mombasa CMCC Misc. Civil Application No. 35 of 2017, and removed goods with police presence. The letters of instruction were proper under the Distress for Rent Act, and Rule 11 of the Auctioneers Rules did not apply to distress for rent.
Whether an interlocutory mandatory injunction should issue to restore the Plaintiff to occupation and return her goods
No. The Plaintiff's case was not unusually strong or clear, and the taking over of the premises followed a court order.
Relying on Shepherd Homes v Sandham and Locabail International Finance, the court held that a mandatory injunction is more drastic than a prohibitory one and is granted only in a clear case, with a high degree of assurance that the grant will be vindicated at trial. The Plaintiff did not demonstrate excessive force, had written letters offering to surrender the premises, and had constructively deserted them. Both the prohibitory and mandatory injunction prayers therefore failed.
Whether the distress for rent and the letters of instruction to the auctioneer complied with the law
Yes. The distress was levied under the Distress for Rent Act, so the Rule 11 Auctioneers Rules letter-of-instruction requirement did not apply, and due process including proclamation and a break-in order was followed.
The Plaintiff argued that the letters marked SM2, SM3 and SM8 were not letters of instruction as envisaged by Rule 11 of the Auctioneers Rules. The court held that Rule 11 refers to a court warrant or letter of instruction emanating from a concluded suit, i.e. a decree, whereas the 3rd Defendant was levying distress for rent under the Distress for Rent Act as a person described in Section 2 of the Auctioneers Act. The letters issued by the 2nd Defendant were therefore proper.
Legal principles established
#- Letters of instruction to an auctioneer levying distress for rent under the Distress for Rent Act need not conform with the letter of instruction requirements in Rule 11 of the Auctioneers Rules
- A mandatory injunction at the interlocutory stage will only be granted where the case is unusually strong and clear and the court feels a high degree of assurance that the grant will be vindicated at trial
- Where entry and removal of goods are effected pursuant to a court-issued break-in order after due proclamation, the distress cannot be said to be forceful or illegal
Court orders
#- 1.The Notice of Motion dated 18th August 2017 is declined in its entirety
- 2.The costs of the application do abide the outcome of the main suit
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rules 1, 2, 3, 4 and 10 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kulthum Suleiman Khamis v Registered Trustees, Kenya Ports Authority Pension Scheme & 2 others [2018] KEELC 2714 (KLR)", Case Analysis (2018). Notice of Motion dated 18th August 2017 (ruling within a pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2714/eng@2018-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.