Stephen Kibathi t/a Malaika Bar v Kabu Kagera & 3 others [2012] KECA 22 (KLR)
- Court
- Court of Appeal
- Case number
- 22
- Citation
- [2012] KECA 22 (KLR)
The appeal is allowed. The order of the High Court dated 17th May, 2002 is set aside. The money deposited into Barclays Bank, Moi Avenue Branch account No. 4289899 be released to the appellant Stephen Kibathi t/a Malaika Bar. Kshs.20,800/= out of the money deposited into the court be paid out to the appellant Stephen Kibathi. The balance of the money deposited into the court be released to the respondent. Orders accordingly.
Facts
At all material times prior to June, 1999, Stephen Kibathi (the appellant) was trading together with Francis Wakhiu as Malaika Bar, and were the tenants of Kabu Kagera, Mucheru Mugo, Gideon Njuguna and Samuel Gakao. The monthly rent was Kshs.2,400/- prior to October, 1984, and was disputed by the respondents, who claimed it was Kshs.5,000/-. The tenants sought a declaration that the distress was illegal and an injunction to return the goods.
Issues
- Whether the levy of distress was illegal due to a dispute on the rent payable.
- Who should receive the escrowed amount of Kshs.20,800/-
Reasoning
The landlord was bound by the consent order of 2nd March, 1999, which stated that the rent payable by the tenant should remain at Kshs.2,400/-. The landlord could not be heard to say he was entitled to anything more. The matter should be brought to an end as most of the landlords have died and the other partner of the tenant has also faced out of the case.
Outcome
Appeal allowed
Orders
- Money deposited into Barclays Bank, Moi Avenue Branch account No. 4289899 be released to the appellant Stephen Kibathi t/a Malaika Bar.
- Kshs.20,800/= out of the money deposited into the court be paid out to the appellant Stephen Kibathi.
- The balance of the money deposited into the court be released to the respondent.
Remedies
- Release of money to the appellant.
- Payment of Kshs.20,800/-
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