Kamulamba Sugar Company Limited v Vil Limited [2017] KEHC 9177 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CIVIL DIVISION

MISC CIVIL APPLICATION NO. 36 OF 2017

KAMULAMBA SUGAR COMPANY LIMITED....PLAINTIFF/APPLICANT

VERSUS

VIL LIMITED……………….…………..…DEFENDANT/RESPONDENT

R U L I N G

Introduction

1. The application for determination is the Notice of Motion dated 08. 06. 2017 brought pursuant to Sections 1A 1B, 3, 3A and 63B of the Civil Procedure Act and Section 7 of the Arbitration Act.  The applicant is seeking for orders to hold on to the respondent’s movable assets as particularized on the face of the application pending the hearing and determination of an intended arbitration.  The application is based on the grounds that the applicant entered into a lease agreement with the Respondent for the lease of land parcel Registration No. South Kabras/Chemuche/905 for a period of thirty 30months starting the 1. 12. 2013 at a rent of kshs.60,000/= per month.

2. The payment terms were set out in the lease agreement dated 30. 10. 2013. The applicant avers that the respondent has since failed and/or refused to pay rent and now is in arrears of kshs1,800,000/=. The applicant has served the respondent with a notice aiming at instituting arbitration Proceedings as per the terms of the lease agreement. The applicant states that since third parties are executing decrees and have attached the assets of the Respondent he may not recover the outstanding rent unless the respondent’s movable assets as particularized are held as lien for rent arrears.

3. The application is supported by the annexed affidavit of Tatuli Mbasu one of the Directors of the applicant company.

Determination

4. The application herein was certified urgent on the 13. 06. 2017 and the court ordered that t the same b served for inter parties hearing on the 21. 06. 2017.  It is on record that the application was duly served on the 15. 06. 2017.  The respondent has not filed any response or objection to the said application. This means that the application is not opposed.  The applicant’s counsel relied on the grounds on the face of the application as well as the affidavit in support.  She urged this court to grant the prayers sought.

5. Since the application is not opposed, and further, the applicant having demonstrated that there is imminent danger that it will suffer irreparable loss if the respondent’s assets are not held in lien for the rent arrears pending the hearing and determination of the arbitration proceedings as demonstrated by the applicant, the application is allowed in its entirety.  Costs shall be in the cause.

Orders accordingly

Ruling delivered, dated and signed in open court at Kakamega this 20th day of  July, 2017

RUTH N. SITATI

JUDGE

In the presence of;-

Mrs. Muleshe holding brief for M/S Rauto (present)………Plaintiff/Applicant

N/A ………………………………………………Defendant/Respondent

Polycap…………………………………………………Court Assistant