JAY RAJ ENTERPRISES LTD V LUCKY DISTRIBUTORS LTD & 3 OTHERS[2012]eKLR

Key Facts

Issues

• Whether the 3rd defendant (law firm) is personally liable for instructing the 4th defendant to levy distress, considering their role as agents of the 1st defendant and the principle that advocates act under their client's authority.
• Whether the distress action carried out by the 4th defendant on instructions of the 3rd defendant was lawful under the Distress for Rent Act, specifically whether the claim was for rent arrears or mesne profits, and whether the procedures for distress were properly followed.
• Whether the plaintiff established a prima facie case of irreparable harm if evicted from the premises, balancing the risk of business collapse against the 1st defendant's right to recover investment returns.

Holdings

• The 2nd defendant was ordered to account for and refund within 14 days the money deposited by the plaintiff after the 2nd defendant ceased to be entitled to rents from the premises.
• The court granted a temporary injunction restraining the 1st defendant from evicting the plaintiff or interfering with its quiet possession of the premises pending the hearing and determination of the suit, provided the plaintiff remits due rents to the 1st defendant according to the tenancy terms.
• The costs of the application were declared to be 'in cause,' meaning their allocation will be determined at a later stage.
• The court granted liberty to apply, allowing parties to seek further orders if necessary.
• The plaintiff was directed to file an appropriate undertaking as to damages within 7 days.

Remedies

• The plaintiff is ordered to file appropriate undertaking as to damages within 7 days.
• A temporary injunction is granted restraining the 1st defendant, its servants and/or agents from evicting the plaintiff from the suit premises or interfering with the plaintiff's quiet possession pending the hearing and determination of this suit, conditioned on the plaintiff remitting due rents to the 1st defendant.
• The costs of this application are directed to be in cause.
• The 2nd defendant is directed to render within 14 days a true account of the money deposited by the plaintiff after the 2nd defendant ceased to be entitled to rents from the suit premises and refund the same to the plaintiff.
• Liberty to apply is granted for further proceedings.

Monetary Damages

Legal Principles

• The court held the 3rd defendant (advocate) liable for instructing the auctioneer to carry out an illegal distress, emphasizing the advocate's duty to exercise due diligence and avoid reckless professional conduct. This aligns with the principle that professionals must adhere to expected standards to prevent harm to clients.
• The court granted a temporary injunction restraining the 1st defendant from evicting the plaintiff or interfering with their possession of the premises pending trial. The ruling emphasized the need to establish a prima facie case, irreparable harm, and balance of convenience. The plaintiff's business goodwill and potential loss of unique trade were key factors in the court's decision.

Precedent Name

• Martha Khayanga Simiyu vs. Housing Finance Co. of Kenya
• Giella vs. Cassman Brown
• Kamau Mucuha vs. Ripples Ltd
• Inverugie Investments Ltd vs. Hackett
• Southport Tramways Company vs Gandy
• Suleiman vs. Amboseli Resort Ltd
• Belle Maison Ltd vs. Yaya Towers
• Mrao Ltd vs. First American Bank of Kenya Ltd

Cited Statute

• Law of Property (Landlord and Tenant) Act
• Civil Procedure Rules
• Cap 293
• Civil Procedure Act
• Distress for Rent Act
• Auctioneers Act

Judge Name

Passage Text

• The principles guiding the grant of interlocutory injunctions are well settled. Firstly, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury... Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.
• Under section 3(1) of the Distress for Rent Act, in looking at what constitutes illegality of distress for rents, the court must not only consider our laws, but must also consider what in England would be considered an illegality in the levy of distress. An illegal distress is one which is wrongful at the very outset... The distress that was carried out by the auctioneer on the instructions of the respondent together with the sale of the goods distressed was plainly illegal and the respondent cannot escape liability to the appellant for his instructions to the auctioneer to carry out that distress for rent upon the appellant's goods which should not have been the subject of such levy of distress...
• 1. That a temporary injunction is hereby granted restraining the 1st Defendants its servants and or agents from evicting the plaintiff from the suit premises or interfering with the Plaintiffs' quiet possession of the suit premises pending the hearing and determination of this suit... 2. That the 2nd defendant renders within 14 days a true account of the money deposited by the plaintiff after the 2nd defendant ceased to be entitled to rents from the suit premises and refund the same to the plaintiff.