M A v Hilton International (K) Ltd & another

High Court, at Nairobi September 22, 1987

Kwach CA

Civil Case No 3490 of 1987

Hotels and Restaurants – liability for debt incurred in hotel – right of hotel to sell property deposited by indebted person - Hotels and Restaurants Act (cap 494) section 13.

Injunction – interlocutory injunction – principles on which such injunction will be granted.

The plaintiff incurred a debt at the 1st defendant’s hotel and having no money with which to settle it, she left her jewellery as security for the debt.

The plaintiff applied for an injunction to restrain the 1st defendant from selling her jewellery and an order that the 2nd defendant should pay off the debt in order for the jewelry to be released to her. The 2nd defendant was her former husband, their marriage having been dissolved by a decree of divorce.

Held:

1. Under the Hotels and Restaurants Act (cap 494) section 13, where property is deposited in a hotel by a person indebted to it for accommodation, food and drink, the liability for payment attaches to the person depositing or leaving the property and who has become so indebted.

2. In this case, that person was the plaintiff. She was clearly the person liable to pay off the debt in order to recover her property.

3. The conditions for the grant of an interlocutory injunction were finally settled in the case of Giella v Cassman Brown & Co Ltd [1973] EA 358. The principles are: First, an applicant must show a prima facie case with a probability of success. Secondly, the injunction will normally not be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide the application on the balance of convenience.

4. In view of the plaintiff’s liability to pay the debt and the fact that the 2^nd defendant was not her husband, the plaintiff had not shown a prima facie case with any probability of success against the defendants.

Application dismissed.

Cases

1. Giella v Cassman Brown & Co Ltd [1973] EA 358

2. EA Industries Ltd v Trufoods Ltd [1972] EA 420

Statutes

Hotels and Restaurants Act (cap 494) section 13(1)

Advocates

Plaintiff Unrepresented.

Mr Ojiambo for the 1st Defendant

Mr S Gautama for the 2nd Defendant