SAMUEL MUNYI KAMAU & 14 OTHERS v CHARLES MWANGI KAGONIA & 2 OTHERS [2007] eKLR

Key Facts

Issues

• The court evaluated the plaintiffs' application for an interlocutory injunction. The plaintiffs failed to show a prima facie case and the court found their remedy was in damages under the Distress for Rent Act. The injunction was dismissed as the plaintiffs could be compensated through damages, and the defendants had suffered financial loss from non-payment. The court also noted the pending case between the 1st defendant and the landlords on the same matter.
• The court examined if the 2nd and 3rd defendants could legally levy distress for rent arrears. The plaintiffs acknowledged the 1st defendant's non-payment of KShs.770,000.00, leading the defendants to distress the premises. The court ruled that the defendants had the right to do so since the arrears were admitted and the plaintiffs had no direct contractual right to pay the landlords.
• The court considered whether the plaintiffs could challenge the validity of the lease agreement between the 1st defendant and the 2nd and 3rd defendants. The plaintiffs admitted the lease's validity in their pleadings and had not amended it. The 2nd and 3rd defendants provided evidence of lease renewal and payments to the government, supporting their superior interest. The court held that the plaintiffs could not challenge the lease's validity as it was admitted and their case was based on its existence.

Holdings

• The court held that the 2nd and 3rd defendants were entitled to levy distress for rent arrears of KShs.770,000.00, as the 1st defendant's non-payment was admitted. The plaintiffs' claim that distress was unjustified was rejected due to lack of evidence establishing their ownership of the distrained goods.
• Even on the balance of convenience, the court declined the injunction. It noted the 2nd and 3rd defendants had suffered over 1.5 years of non-payment and the plaintiffs' remedy lay against the 1st defendant, not the landlords. The plaintiffs' police complaint against the 1st defendant further supported this conclusion.
• The court dismissed the plaintiffs' objection to the annexures to the replying affidavit, finding they were properly identified and the defect in form was immaterial. The court held that the annexures were admissible under Order XVIII Rule 7 of the Civil Procedure Rules.
• The court determined that the plaintiffs could not challenge the validity of the lease between the 1st defendant and 2nd/3rd defendants, as they admitted its existence in their plaint. The 2nd and 3rd defendants' superior interest in the property was affirmed by documentary evidence including a lease renewal letter and tax receipts.
• The court denied the injunction application, finding the plaintiffs lacked a prima facie case with a probability of success. It emphasized that the plaintiffs' statutory remedy under Section 8 of the Distress for Rent Act (Cap 293) provided adequate compensation for any wrongful distress, making injunctive relief unnecessary.

Remedies

Legal Principles

• Applying the principles from Giella v. Cassman Brown & Co. Limited [1973] EA 358, the court required the plaintiffs to show a prima facie case and irreparable harm. It concluded that the plaintiffs failed to establish either, and their statutory remedy under Section 8 of the Distress for Rent Act (Cap 293) provided sufficient compensation for wrongful distress.
• The court found that the issues raised in the plaintiffs' application were already determined in HCCC No.96 of 2005, which declared the lease between the 1st defendant and the 2nd/3rd defendants illegal and unenforceable. This established the principle of res judicata, preventing the plaintiffs from relitigating the same matter.

Precedent Name

• Giella -vs- Cassman Brown & Company Limited & Another
• Minar -vs- Plaza Trust Limited and 2 Others

Cited Statute

• Hotels, Shops and Business Premises Act
• Distress for Rent Act
• Civil Procedure Act

Judge Name

Passage Text

• The plaintiffs' remedy as can clearly be discerned from the said section sound in damages and the quantification thereof is prescribed. Ringera J as he then was was of a similar view in Minar -vs- Plaza Trust Limited and 2 Others: [HCCC No.679 of 2001] (UR). The Learned Judge expressed himself thus: 'In these circumstances an injunction cannot be issued to prohibit the demand or the enforcement by way of distress of payment of the rent disputed by the tenants.'
• I am of the persuasion at least on a prima facie basis that the challenge made against the lease between the 1st defendant and the 2nd and 3rd defendants has no merit.
• The application being principally for injunctive relief, I will consider the same in the light of the well known principles laid down in the rule making case of Giella -vs- Cassman Brown & Company Limited & Another [1973] EA 358. The principles are as follows: First the applicant must show a prima facie case with a probability for success at the trial but if the court is in doubt it should decide the application on a balance of convenience. Secondly, normally an interlocutory injunction will not be granted unless the applicant would suffer an injury which cannot be compensated in damages.