JOSEPHINE SUKULU v JOYCE K.K. MULINGE & NDITHHA M. KINGOTI T/A MAX AUCTIONEERS [2008] KEHC 351 (KLR) | Injunctions | Esheria

JOSEPHINE SUKULU v JOYCE K.K. MULINGE & NDITHHA M. KINGOTI T/A MAX AUCTIONEERS [2008] KEHC 351 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

Civil Case 42 of 2008

JOSEPHINE SUKULU ::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

JOYCE K.K. MULINGE

NDITHHA M. KINGOTI T/A MAX AUCTIONEERS::::::::::::::DEFENDANTS

RULING

1.     The Applicant herein, Josephine Sikulu by her Application premised on section 3A of the Civil Procedure Rules and Order XXXIX Rules 1  and 2 of the Civil Procedure Rules seeks orders as follows:-

“a. An injunction do issue restraining the Defendants

jointly and severally by themselves, their servants, agents and/or workmen or by any persons whomsoever from removing any of the Plaintiff’s household goods, personal effects and motor vehicle KAG 190Q Pajero from the suit premises Flat No.5B on LR No. Mavoko/Block 7/124.

b.A mandatory injunction do issue directed against the Defendants jointly and severally by themselves, their servants, agents and/or workmen or by any persons whomsoever compelling them to allow the Plaintiff free and unhindered access to the suit premises Flat No.5B situated on LR No. Mavoko/Block 7/124 and to allow the Plaintiff free and unhindered opportunity to remove all her household goods, personal effects  and motor vehicle KAG190 Pajero lying or found thereon.

c.Costs of this application be borne by the Defendants jointly and/or severally.”

2.     In the Supporting Affidavit sworn on 11. 4.2008, the Applicant depones that she was a tenant in Flat No. 5B Situated in L.R.No. Mavoko/Block 7/124 at a monthly rent of Kshs. 9,000/=.  She entered the premises in April 2007 but on 1. 2.2008 gave 2 months notice to terminate the lease.  That on 30. 3.2008 as she prepared to move out, the 1st Defendant and her agents locked  up the premises together with all household goods as well as motor vehicle KAQ 190Q and claimed that the Applicant had declined to repair the said premises.  Later, the 2nd Defendant carted away the goods and the Applicant has had no access to them.  It is her case that the 1st and 2nd Defendant’s conduct was unlawful and improper.

3.     The 1st Defendant in her Replying Affidavit sworn on 1. 5.2007deponed that the Applicant was the one who, together with her family, neglected to abide by the terms of the lease agreement dated 29. 1.2007 because;

i.    She decided to leave the premises without making the necessary repairs.

ii.    She refused to pay water and electricity bills before attempting to move out;

iii.    She refused to meet with the area Chief and District Officer on various occasions to discuss an amicable settlement to the matter.

4.     Further, that  motor-vehicle registration number KAQ 190Q was driven away on 11. 4.2008 and was no longer on the premises.

5.     I have taken into account submissions made on behalf of the parties and I have also perused the decision of Bosire J, ( as he then was) in Belle Maison Ltd vs Yaya Towers Ltd HCCC 2225/1992 and to my mind prayer (a) is superfluous in view of the matters deponed to in both affidavits filed.  It is now agreed that the Applicant’s household goods have in fact been removed from the suit premises by the 2nd Defendant to an unclear location.  As framed therefore the order sought cannot properly be issued.

6.     Regarding prayer (b) of the Application, again it is framed as if the goods are within the suit premises.  It has not been denied that the motor vehicle KAQ 190Q has in fact been driven away by the Applicant’s son. No mandatory injunction can issue in such an instance and as regards the household goods and personal effects, if they are not in the premises, what orders can this court issue? The Application has not been amended to show that in fact it is the 2nd Defendant who has the goods if at all, in some undisclosed location. How can this court issue any orders with such a flawed Application?

7.     The Motion which ought to be a Summons is in any event less than serious and is quickly dismissed with costs to the Defendants.

8.      Orders accordingly.

Dated and delivered at Machakos this 17th day of November 2008.

Isaac Lenaola

Judge

In the presence of: Mr. Mutinda  h/b for Mr. Mureithi for Applicant.

Isaac Lenaola

Judge