Case ID:201523

Arunga & another v NCBA Bank Kenya PLC & 3 others (Environment & Land Case 4 of 2018) [2022] KEELC 3894 (KLR) (28 July 2022) (Ruling)

Case Metadata

Case Number:

Environment & Land Case 4 of 2018

Parties:

Arunga & another v NCBA Bank Kenya PLC & 3 others

Date Delivered:

28 Jul 2022

Case Class:

Court:

Environment and Land Court at Nairobi

Case Action:

Ruling

Judge(s):

Samson Odhiambo Okong'o

Citation:

Arunga & another v NCBA Bank Kenya PLC & 3 others (Environment & Land Case 4 of 2018) [2022] KEELC 3894 (KLR) (28 July 2022) (Ruling)

Advocates:

Mr. Owaga for the 1st Plaintiff, Mr. Kabaiku for the 1st and 3rd Defendants, Mr. Kurauka for the 2nd Defendant

Court Division:

Environment and Land

County:

Nairobi

Advocates:

Mr. Owaga for the 1st Plaintiff, Mr. Kabaiku for the 1st and 3rd Defendants, Mr. Kurauka for the 2nd Defendant

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Arunga & another v NCBA Bank Kenya PLC & 3 others (Environment & Land Case 4 of 2018) [2022] KEELC 3894 (KLR) (28 July 2022) (Ruling)

Neutral citation:

[2022] KEELC 3894 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 4 of 2018

SO Okong'o, J

July 28, 2022

Between

Michael Angaya Arunga

1

st

Plaintiff

Pamela Kawira Arunga

2

nd

Plaintiff

and

NCBA Bank Kenya PLC

1

st

Defendant

Athinya Muthuri Haron

2

nd

Defendant

Lydia Waweru t/a Purple Royal Auctioneers

3

rd

Defendant

District Land Registrar Kiambu

4

th

Defendant

Ruling

1.

At all material times, all that property known as Kiambaa/Kihara/2861 (hereinafter referred to as “the suit property”) was registered in the names of the plaintiffs. The plaintiffs had charged the suit property to the 1

st

defendant to secure a loan facility that was advanced to them. In their amended plaint filed on June 24, 2020, the plaintiffs averred that without following the laid down procedure for exercising statutory power of sale, the 1

st

defendant through the 3

rd

defendant sold the suit property to the 2

nd

defendant to recover the then outstanding loan. The plaintiffs averred that the purported sale was conducted in secrecy and that there was no public auction. The plaintiffs averred that the secret sale was conducted so as to deprive the plaintiffs of their right to redeem the suit property. The plaintiffs averred that the suit property was sold to the 2

nd

defendant at an undervalue and that the whole process was illegal and fraudulent in that even the necessary statutory notices were not served upon the plaintiffs before the said sale that was conducted through private treaty camouflaged as public auction. The plaintiffs averred that the suit property that was purportedly sold by the 1

st

defendant to the 2

nd

defendant at

Kshs

22,400,000/- was last valued in April 2019 at Kshs 87,500,000/-.

2.

The plaintiffs sought among other reliefs; an order nullifying the auction that was conducted on February 20, 2020 and the purported sale of the suit property to the 2

nd

defendant, an order that a fresh valuation of the suit property be conducted by an independent valuer and in the alternative, an order for the defendants to compensate the plaintiffs for the loss incurred as a result of the unprocedural valuation and auction of the suit property. The 1

st

, 2

nd

and 3

rd

defendants filed separate statements of defence on March 28, 2022, April 28, 2022 and March 23, 2022 respectively in which they denied the plaintiffs’ claims in their entirety.

3.

What is now before me are two applications brought by the 1

st

plaintiff by way of notice of motion dated March 11, 2022 and notice of motion dated April 25, 2022. In the application dated March 11, 2022, the 1

st

plaintiff has sought the following orders;

1.

That the 2

nd

defendant by himself or through his agents more specifically High Class Auctioneers or any other auctioneer be restrained from levying distress for rent, attaching and/or selling any movable property including but not limited to household goods and motor vehicles from the suit property pending the hearing and determination of the suit.

2.

That interlocutory judgment in default of filing a defence be entered against the 2

nd

defendant.

3.

That the costs of the application be provided for.

4.

The application that was supported by the affidavit of the 1

st

plaintiff was brought on the grounds that the 2

nd

defendant’s application seeking to compel the plaintiffs to pay rent and to vacate the suit property was dismissed by the court on February 15, 2022. The 1

st

plaintiff averred that the plaintiffs had no landlord and tenant relationship with the 2

nd

defendant. The 1

st

plaintiff averred that despite the fact that there was no landlord and tenant relationship between the plaintiffs and the 2

nd

defendant, the 2

nd

defendant had purported to levy distress against the plaintiffs on March 1, 2022 to recover alleged rent arrears. The 1

st

plaintiff averred that he would suffer substantial loss if the application was not allowed.

5.

In his application dated April 25, 2022, the 1

st

plaintiff sought the following orders;

1.

That prayer 2 in the 1

st

plaintiff’s application dated March 11, 2022 be granted pending the hearing of the said application inter-partes restraining the 2

nd

defendant by himself or through his agents more specifically High Class Auctioneers or any other auctioneer from levying distress for rent, attaching and/or selling any movable properties from the suit property pending the hearing of the application or further orders by the court.

2.

That the 2

nd

defendant be ordered to return the plaintiffs’ goods attached by High Class Auctioneers from the suit property pending the hearing and determination of the main suit.

3.

That the 3

rd

defendant be directed to produce the

CCTV

footage of 20

th

February 2020 from the CCTV recording in the 3

rd

defendant’s offices at Cargen House Nairobi.

4.

That the respondents do pay the costs of the application.

6.

The application that was also supported by the affidavit of the 1

st

plaintiff was brought on the same grounds as the application dated March 11, 2022. The 1

st

plaintiff added that on April 22, 2022, High Class Auctioneers in the company of goons and Police Officers from Gigiri Police Station invaded the suit property, broke into the plaintiffs’ house and carried away all kitchen ware and appliances together with the household items in the sitting room and dining area. The 1

st

plaintiff averred that the said goons vandalised the said house by breaking the door and gaining access. The 1

st

plaintiff averred that the plaintiffs’ said household goods were carried way in the presence of the plaintiffs’ son who was the only one in the house. The 1

st

plaintiff averred that it took the intervention of the

OCS

Gigiri Police Station to stop the auctioneers and the said goons from carrying away the rest of the household goods. The 1

st

plaintiff contended that the 2

nd

defendant decided to employ unorthodox means to evict the plaintiffs from the suit property contrary to the advice that was given to him by the court in the ruling that was delivered by the court on 15

th

February 2022. The 1

st

plaintiff averred that the plaintiffs would suffer irreparable loss and damage if the orders sought were not granted.

7.

The 2

nd

defendant opposed the two applications through grounds of opposition dated April 26, 2022. The 2

nd

defendant contended that the application was

res judicata

, misconceived and lacked merit. The 2

nd

defendant contended that the court was

functus officio

and had no jurisdiction to grant the orders sought. The 2

nd

defendant contended that the suit property belonged to the 2

nd

defendant and that the plaintiffs had no interest or proprietary rights over the same. The 2

nd

defendant contended that the application was not anchored in the plaint.

8.

The 1

st

defendant opposed the two applications through grounds of opposition dated April 27, 2022. The 1

st

defendant averred that the 2

nd

plaintiff had filed a similar application in

ELC

Petition No 17 of 2020 and as such the application was an abuse of the process of the court. The 1

st

defendant averred that the court had declined to grant the orders sought on March 17, 2022 in ELC Petition

No

17 of 2020. The 1

st

defendant averred that after the suit property was sold by public auction on February 20, 2020 and transferred to the 2

nd

defendant, the plaintiffs became trespassers on the suit property. The 1

st

defendant averred that the 1

st

plaintiff’s application had been overtaken by events as what is sought to be restrained had already taken place. The 1

st

defendant averred that there was no provision for interlocutory judgment in matters of this nature.

9.

The application was argued on April 28, 2022. The 1

st

plaintiff’s advocate Mr Owaga submitted that the 1

st

plaintiff was seeking prayer 3 in the application dated March 11, 2022 and prayers 2, 3 and 4 in the application dated April 25, 2022. Mr Owaga submitted that the distress that was levied against the plaintiffs was illegal and that the same was an attempt by the 2

nd

defendant to use unorthodox means to obtain possession of the suit property. He dismissed the grounds put forward by the defendants in opposition to the application as irrelevant. Mr Kabaiku for the 1

st

defendant relied entirely on the 1

st

defendant’s grounds of opposition. He added that there were two appeals pending in the Court of Appeal over the decisions made by this court against the plaintiffs. Mr Kurauka for the 2

nd

defendant submitted that the application was frivolous in that the issues raised therein had not been established. He submitted that the distress was lawful in that the plaintiffs were occupying a property that the 2

nd

defendant purchased using a bank loan that he was still paying. Mr Kurauka submitted that the 2

nd

defendant as the owner of the suit property did not require leave of the court before levying distress. He submitted that the 2

nd

defendant obtained an order from the lower court for police assistance and that the goods had been removed from the suit property and were awaiting sale. He submitted that the 1

st

plaintiff should pay auctioneers charges and storage charges in case the orders sought were granted. He also urged the court to order the 1

st

plaintiff to deposit in court rent of

Kshs

5,000,000/-.

Determination:

10.

The 2

nd

defendant had brought an application herein dated October 6, 2021 seeking among others an order that the plaintiffs be ordered to pay reasonable rent for the suit property to the 2

nd

defendant and that the plaintiffs do vacate the suit property on or before November 1, 2021 and give vacant possession to the 2

nd

defendant in default of which they be evicted. The 2

nd

defendant’s application was dismissed on February 15, 2022. In the ruling, the court stated as follows in part:

“

...At the beginning of this ruling, I have mentioned that the 2

nd

defendant among others has not filed a defence to the plaintiffs’ claim against him. This court cannot give orders in a vacuum. The court has power to grant the reliefs sought by the 2

nd

defendant. That power is however exercisable on the basis of pleadings. The 2

nd

defendant’s application is not anchored on any pleading before the court. I am of the view that the orders sought by the 2

nd

defendant are substantive in nature and cannot be granted by the court without a proper foundation being laid for the same. If the 2

nd

defendant wants to recover possession and damages for loss of use of the suit property from the plaintiffs, the claims must be properly pleaded and the plaintiffs given opportunity to respond to the same. It is on the basis of such pleading that the current application can be brought. As it stands, the 2

nd

defendant’s application has no leg to hold it. It must fall.”

11.

The 1

st

plaintiff’s complaint is that the 2

nd

defendant has levied illegal distress against the plaintiffs and carried away the plaintiffs’ household goods. The 2

nd

defendant has admitted that he levied distress against the plaintiffs and carried their house hold goods away and that the same are awaiting sale by the auctioneer. It is common ground that there is no landlord and tenant relationship between the plaintiffs and the 2

nd

defendant. It is not disputed that the suit property is now registered in the name of the 2

nd

defendant. In my view, that does not make the plaintiffs who were the previous owners of the suit property who have refused to vacate the suit property tenants of the 2

nd

defendant. It is beyond argument that rent can only be recovered from a tenant. The plaintiffs are at best trespassers on the suit property. What the 2

nd

defendant can recover from the plaintiffs is damages for trespass and mesne profits. Right to levy distress does not accrue against a trespasser. Rent is contractual. In the absence of an agreed rent, there is no basis upon which distress can be levied. One wonders how the 2

nd

defendant arrived at the amount of Kshs 4,800,000/- that he claimed as rent in the purported distress. In the circumstances, it is my finding that the purported distress was illegal. The removal of the attached goods was similarly illegal. The 1

st

plaintiff is therefore entitled to an injunction restrain the 2

nd

defendant from continuing with the illegal distress. The 1

st

plaintiff is also entitled to an order for the return of the goods that were removed from the plaintiffs’ house pursuant to the said illegal distress.

12.

The 1

st

plaintiff had sought other prayers in addition to those targeting the illegal distress. I have found no merit in the prayer seeking the production of the alleged CCTV footage of February 20, 2020. I am of the view that no basis has been laid for the prayer. There is no evidence before the court that the CCTV was working and that the event for which the footage is sought was recorded. The court has also not been told whether or not the plaintiffs have asked the 3

rd

defendant for the said footage. The prayer sounds like a fishing expedition for evidence. There was also a prayer for interlocutory judgment against the 2

nd

defendant. There is a clear procedure in the

Civil Procedure Rules

for requesting for default judgment. It is not necessary to file a formal application for that purpose. In any event, the 2

nd

defendant has now filed a statement of defence.

Conclusion:

13.

In conclusion, I hereby make the following orders;

1.

A temporary injunction is issued restraining the 2

nd

defendant by himself or through his agents more specifically High Class Auctioneers or any other auctioneer from levying distress for rent against the 1

st

plaintiff, attaching and/or selling any movable property including but not limited to household goods and motor vehicles from the suit property pending the hearing and determination of this suit.

2.

That the 2

nd

defendant shall return forthwith the 1

st

plaintiffs’ goods attached by High Class Auctioneers from the suit property pending the hearing and determination of this suit.

3.

Each party shall bear its own costs of the two applications.

DELIVERED AND DATED AT NAIROBI THIS 28

TH

DAY OF JULY 2022.

S OKONG’O

JUDGE

RULING DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM IN THE PRESENCE OF:

Mr Owaga for the 1

st

plaintiff.

Ms Pamela Arunga, the 2

nd

plaintiff in person.

Mr Kabaiku for the 1

st

and 3

rd

defendants.

Mr Kurauka for the 2

nd

defendant.

N/A for the 4

th

defendant.

Ms C Nyokabi-court assistant.