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ELCDismissedNotice of Motion dated 18th August 2017 (ruling within a pending suit)· [2018] KEELC 2714 (KLR)

Kulthum Suleiman Khamis v Registered Trustees, Kenya Ports Authority Pension Scheme & 2 others [2018] KEELC 2714 (KLR)

High Court of Kenya (not expressly named in the judgment)
15 March 2018
2,419 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, a tenant on Title Number Mombasa/Block/579/xi, Mombasa Island, moved the court by Notice of Motion dated 18th August 2017 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, seeking temporary and mandatory injunctions. She alleged that on 22nd February 2017 the 3rd Defendant, aided by police, broke into the demised premises, carried away her movable goods, locked her out, and conducted an unlawful distress for rent without the mandatory 14-day notice or proclamation, and sought restoration of the goods and re-entry into the premises. The Defendants opposed, showing she was in rent arrears of Kshs309,000 by January 2017; that the 3rd Defendant proclaimed her movables on 30th January 2017 with 14 days' notice; that break-in orders were obtained in Mombasa CMCC Misc. Civil Application No. 35 of 2017; and that the goods were removed on 22nd February 2017 with police presence and later advertised for sale. Framing three issues, the court applied the Giella v Cassman Brown principles and Mrao's definition of a prima facie case. It held that the distress was levied under the Distress for Rent Act so Rule 11 of the Auctioneers Rules did not apply, that due process was followed, that entry pursuant to a court order was not forceful or illegal, and that the Plaintiff's own letters offering to surrender the premises defeated her claim. The mandatory injunction threshold, requiring an unusually strong and clear case, was also not met. The application was dismissed with costs to abide the outcome of the main suit.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 3
02

Whether an interlocutory mandatory injunction should issue to restore the Plaintiff to occupation and return her goods

Holding

No. The Plaintiff's case was not unusually strong or clear, and the taking over of the premises followed a court order.

Reasoning

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.

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Whether the distress for rent and the letters of instruction to the auctioneer complied with the law

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 18th August 2017 is declined in its entirety
  2. 2.The costs of the application do abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40 Rules 1, 2, 3, 4, 10; Order 51 Rule 1
  • Distress for Rent ActSection 16
  • Auctioneers ActSection 2
  • Auctioneers RulesRule 11

Cases cited (12)

  • Gusii Mwalimu Investment Co. Ltd And 2 Others v Mwalimu Hotel Kisu Ltd
    (1996) eKLR
  • Kamau Mucaha v Riples Ltd
    (1993) eKLR
  • Washington Jalango Okumu v Boffar Ltd
    (2005) eKLR
  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • Kenya Railways Corporation v Thomas M. Nguti And 6 Others
    (2009) eKLR
  • Global Vehicles Kenya Ltd v Lenana Road Motors
    (2015) eKLR
  • East Africa Railways Corporation v Karangi
    (1988) eKLR
  • Triton Service Stations v PJP Holdings Ltd
    (2009) eKLR
  • Mrao Limited v First American Bank Limited And 2 Others
    (2003) eKLR
  • Lucy Wangui Gachera v Minudi Okemba Lore
    Malindi Civil Appeal No. 4 of 2015
  • Shepherd Homes Limited v Sandham
    (1971) CH 34
  • Locabail International Finance Ltd v Agroexport
    (1986) All ER 901
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

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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, "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.