[2025] KEBPRT 293 (KLR)

Alfred Njeru Ndambiri t/a A.N. Ndambiri & Co. Advocates v Kenya Conference of Catholic Bishops & 2 others (Tribunal Case E1034 of 2023) [2025] KEBPRT 293 (KLR) (23 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 293 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1034 of 2023

CN Mugambi, Chair

May 23, 2025

Between

Alfred Njeru Ndambiri t/a A.N. Ndambiri & Co. Advocates

Applicant

and

Kenya Conference of Catholic Bishops

1st Respondent

Regent Management Limited

2nd Respondent

Garam Investment Auctioneers

3rd Respondent

Ruling

Introduction 1. The Tenant’s amended Reference to the Tribunal dated 31. 10. 2023 has sought the following orders;-a.A declaration that the tenancy relationship between the parties herein is a controlled tenancy.b.A declaration that the Tenant’s monthly rent is Kshs. 50,000/=.c.A declaration that the Tenant is not in any rent arrears as at the time of filing the amended Reference.d.A declaration that the proclamation of attachment/possession/distraint of movable property dated 12. 10. 2023 is illegal and irregular.e.A declaration that the removal of the Tenant’s office furniture and other items is illegal and irregular.f.An order that all the office furniture and other items removed from the Tenant’s office on 30. 10. 2023 as captured in the notification of sale of movable property dated 30. 10. 2023 be returned to the Tenant’s office in the same state and condition they were in before 30. 10. 2023 within five days of this order.g.General damages.h.Costs of the Reference.

2. The matter proceeded for hearing from 30. 4.2024 and on several other days until 30. 9.2024 when the Landlord closed its case and parties were ordered to file their written submissions.

3. The Tenant called a witness Ms. Ruth Gitau while the Landlord relied on the affidavits it had filed and the evidence of Mr. Samuel Mwai.

The Tenant’s Case 4. The Tenant sought to and was allowed to rely on his affidavits sworn on 19. 10. 2023 and 31. 10. 2023 together with the annexures to the said affidavits.

5. The Tenant’s case is that he has been a Tenant of the Landlord since May 1993 and that in the month of January, 2018, the rent was agreed at Kshs. 57,000/= all-inclusive and in July 2020, the Tenant requested, and the Landlord agreed to reduce the monthly rent payable to Kshs. 50,000/= due to the effects of the Covid-19 pandemic. The Tenant has been paying the rent of Kshs. 50,000/= since then.

6. It is the Tenant’s case that he does not owe the Landlord any rent arrears and he has responded to all the rent demands made by the Respondent as can be seen from the various correspondences between the parties. It is the Tenant’s view that the alleged rent arrears demanded by the Respondent are made in bad faith and with the sole intention of hounding him out of the suit premises.

7. The Tenant has further stated in his evidence that on 30. 10. 2023 the 3rd Respondent and the employees of the 2nd Respondent wen to the Tenant’s office and forcefully took away the Tenant’s office furniture and damaged and destroyed his client’s documents and also took away items that were not in the proclamation list.

8. The Tenant was further notified by the 2nd Respondent that he should no longer use the parking space at the basement of the building with effect from 1st November 2023 despite the fact that the Tenant had a license allowing him to use the parking space.

The Landlord’s Case 9. The Landlord’s case is that the Tenant occupied the suit premises at an agreed monthly rent of Kshs. 57,000/= which the Tenant had been paying consistently.

10. The Landlord denies that sometimes in July 2020, it entered into any consent reducing the rent payable to Kshs. 50,000/=.

11. The Landlord has set out its claim for rent against the Tenant as follows;-a.That the Tenant fell into arrears for the first quarter January to March 2020. b.That subsequently, the Tenant underpaid its rent for April-June 2020, July-September 2020, October-December 2020 wherein he paid Kshs. 50,000/= per month instead of Kshs. 57,000/= per month. Consequently, the outstanding arrears at the end of the year 2020 was Kshs. 161,566. 33/=.c.That the Tenant failed to pay rent in September 2021 and as at December 2021, the rent arrears had accumulated to Kshs. 308,520/=.d.In the year 2022, the Tenant underpaid rent for the quarters April – June 2022 and July – September 2022 and did not pay any rent for the month of September 2022 entirely. The outstanding rent as at September 2022 therefore accumulated to Kshs. 378,474. 00/=.e.That in the quarters January-March 2023 and April to June 2023, the Tenant continued to underpay the rent, bringing the rent arrears to Kshs. 546,183. 34/= which the Tenant reduced by a payment of Kshs. 50,000/= in September 2023 leaving a balance of Kshs. 496,189. 34/=.

12. The Landlord has further testified that on 12. 7.2022 it issued the Tenant with a parking license for a parking space in the suit premises at Kshs. 5,000/= per month and which license was terminable by either party issuing a one months’ notice to the other party, consequently by a letter dated 28. 9.2023, the Landlord terminated the parking license it had issued to the Tenant.

13. The Landlord further testified that the Tenant violated express terms on the payment of rent and the Landlord who made several demands for the payment of the same had every right to take the action that it took. The Landlord has further stated that all the Tenants who requested for rent reprieve during the Covid pandemic did so in writing and the requests were granted in writing. It is the Landlord’s case that the Tenant did not provide any evidence of any such request nor a written concession by the Landlord.

Analysis and determination 14. From the pleadings filed, the evidence tendered and the submissions of the parties, the following issues arise for determination in this Reference:a.What is the applicable monthly rent payable by the Tenant for the purposes of determining this dispute.b.Whether the Tenant is in rent arrears?c.Whether the Tenant is entitled to the orders sought in the Reference.

15. I have seen the issues raised by the parties. The Tenant has sought that the tenancy between the parties be declared a controlled tenancy. I think this is obvious for the simple reason that the tenancy agreement was not reduced into writing and further, the Landlord admits that the tenancy herein is a controlled tenancy.

16. The Landlord has also requested the court to determine whether the Landlord validly terminated the parking license. I have perused the Reference under determination and I do note that the issue of the termination of the parking license is not one of the issues raised in the said Reference and the Tenant has not sought any orders relative to the termination of the parking license. I do not therefore think that it is an issue for my determination.

Issue A: What is the applicable monthly rent payable by the Tenant for the purposes of determining this dispute. 17. Both parties agree that the rent payable as at January 2016 was Kshs. 57,000/=. The Tenant testified that he paid this rent up to the year 2020 when the Covid Pandemic struck and he requested, through Father Rono, that he be allowed to pay a monthly rent of Kshs. 50,000/=. According to the Tenant, this request was granted and he has been paying the said rent since then. The Tenant admits under cross examination that, there was no formal written agreement on the reduction of his rent and further testified that this was not strange as even his lease was not written. The Tenant seems to anchor the reduction of his monthly rent on the covid pandemic, the word of Father Rono and the many good things he was assisting the church in during that period.The Landlord on its part has denied that it ever revised the rent payable from Kshs. 57,000/= to Kshs. 50,000/=. Ms. Ruth Gitau why was called by the Tenant as his witness testified that she did not know who the Tenant was paying Kshs. 50,000/= and further that there was no written concession which was given to the Tenant. The witness further testified that the Tenant’s rent arrears started from 1. 04. 2020. According to the Landlord’s witness, Mr. Samuel Mwai, the terms of the tenancy were never altered and the payment terms remained as follows;-a.Rent per month Kshs. 57,000/=.b.Parking fees Kshs. 5,000/= plus 16% VAT per month.

18. It is not clear whether the Kshs. 57,000/= was all inclusive or whether VAT on the sum was payable separately. This is so because in the letter by N.W. Realite dated 31. 5.2017, the Landlord demanded for unpaid VAT for December 2016 and up to May 2017 but in a rejoinder by the Tenant in a letter dated 9. 06. 2017, the Tenant stated as follows;-“Our understanding of the contents of the notice to alter terms of tenancy dated 5. 09. 2016 was the total sum of Kshs. 57,279. 00/= monthly rent was inclusive of VAT hence our consenting to its terms. We therefore deny being in arrears amounting to Kshs. 141,206. 00/= as stated in your letter of 31. 5.2017. ”I have seen the Landlord’s notice to terminate or alter terms of tenancy dated 5. 9.2016. It is (where relevant) in the following terms;-2. The alterations which i propose are:“An increase of rent from Kshs. 40,690/= to Kshs. 44,759/= plus service charge of Kshs. 12,520/=, totaling to Kshs. 57,279. 00/=.”

19. It is the above notice to alter terms of the tenancy that the Tenant acceded to and it is that concession by the Tenant which gave rise to the new rates in the year 2016 or 2017 or thereabouts. In the circumstances, I am prepared to find and I do find that the rent payable by the Tenant was Kshs. 57,279/= reduced to Kshs. 57,000/= and it was all inclusive for the office rent but excluded the rent payable for the parking space which had a separate agreement.

20. The big question is now whether it has been established that indeed the Landlord revised the rent payable downwards to Kshs. 50,000/= in the year 2020. It was incumbent upon the Tenant to prove this allegation and I must admit that I have not seen any evidence that the rent was revised. The Tenant stated that the revision was done/acceded to by Father Rono, but the said priest was not called to testify in aid of this proposition. It is now more than settled that the burden of proof lies on a party who wishes to have the court believe in any set of facts or circumstances that he brings forth. Section 107 of the Evidence Act in this regard provides that whoever desires any court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.In the case of; Jenniffer Nyambura Kamau v Humphrey Mbaka Nandi [2013] eKLR, the court held;“Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. The Appellant did not discharge the burden and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side.”

21. I also do not think that the Landlord has admitted anywhere, at least on the material placed before the Tribunal that it revised the rent payable downwards to Kshs. 50,000/=. The Landlord in a letter dated 3. 06. 2022 demanded that the Tenant pays the rent arrears of Kshs. 416,997. 35/=, a copy of the rent statement was attached. The Tenant wrote back on the same day and denied owing any rent arrears. In an email dated 7. 06. 2022 addressed to the Tenant, the then Agents of the Landlord responded as follows;-“I also refer to the contents of your letter where you stated that you have never defaulted on rent. This is clearly not true as you have outstanding arrears in the amount of Kshs. 416,997. 35/=. Furthermore, as I have indicated before via email and when we met with you, you have been paying less rent than the monthly amount and thus your arrears keep increasing. You also have made no effort to pay an additional amount towards the arrears.”

22. On this issue, it is therefore my finding that the rent payable by the Tenant is Kshs. 57,000/= per month all inclusive. I do further find that there is no evidence that the said sum/rent was revised to Kshs. 50,000/= per month. Consequently, the calculation of the Tenant’s rent arrears should be based on the monthly rent of Kshs. 57,000/=.

Issue B: Whether the Tenant is in rent arrears? 23. In the statement of account to the Tenant annexed to the affidavit of Mr. Samuel Mwai at page 4 and 5, the closing balance is shown as Kshs. 456,951. 00/=. The statement covers the period January 2019 to June 2023 and is based on a quarterly rent of Kshs. 189,238. 50/= which translates to a monthly rent of Kshs. 63,079. 50/= save for the 2nd, 3rd and 4th quarter of 2020 when the Tenant was charged a quarterly rent of Kshs. 185,976. 77/= which translates to a monthly rent of Kshs. 61,991. 92/=. Based on a summary of the statement by the Landlord, the sums play out as follows;-Total payable as at June 2023 Kshs. 3,210,566. 31Total paid as at June 2023 Kshs. 2,753,614. 98Amount due Kshs. 456,951. 33

24. Basing the calculations of the rent payable from April 2019 to June 2023, at the rate of Kshs. 57,000/=, the rent account is as follows;-Total payable as at June 2023 Kshs. 2,910,300. 00Total paid Kshs. 2,753,614. 98Amount due Kshs. 156,685. 02

25. As at the time the Tenant’s goods were proclaimed and attached on 30. 10. 2023, the rent due was Kshs. 334,685. 02/= worked out as follows;-a.Rent due up to June 2023 Kshs. 156,685. 02b.Rent due up to October 2023 Kshs. 228,000. 00c.Less Kshs. 50,000/= paid Kshs. 50,000. 00Amount due Kshs. 334,685. 00

26. Having already determined the rent payable by the Tenant to be an all inclusive monthly figure of Kshs. 57,000/=, it is therefore clear that the Tenant underpaid rent and as at October 2023, the Tenant was in rent arrears amounting to Kshs. 334,685. 02/= and I so find. As earlier indicated, this figure does not include the rent for the parking license as it is not an issue in the Reference.

Issue C: Whether the Tenant is entitled to the orders sought in the Reference 27. In answer to prayer (a) of the Tenant’s Reference, I have already found that the tenancy between the parties is a controlled tenancy.

28. In answer to prayer (b) of the Reference, I have already found that the applicable rent is Kshs. 57,000/= per month.

29. In answer to prayer (c) of the Reference, I have already found that the Tenant was as at 30. 10. 2023 in rent arrears amounting to Kshs. 334,685. 02/=.

30. Was the distress for rent against the Tenant illegal, irregular, null and void? It has already been found that the Tenant was in rent arrears when the Landlord proceeded to levy distress for rent. That action by the Landlord was in agreement with the provisions of Section 3(1) of the Distress for Rent Act Cap 293 Laws of Kenya which provides as follows;-“Subject to the provisions of this Act, any person having any rent service in arrears and due upon against lease, demise or contract shall have the same remedy by distress for the recovery of that rent service as is given by the common Law of England in a similar case.”The right of the Landlord to levy distress for rent had therefore crystalized and cannot be said to be illegal where rent was owing. An illegal distress has been described as one which is wrongful at the very outset, that is to say either where there was no right to distrain or where a wrongful act was committed at the beginning of the levy invalidating all subsequent proceedings…or a distress levied or proceeded with contrary to the Law of distress (see the case of; C.Y.O. Owayo v George Hannington Zephania t/a Aduda Auctioneers & Another [2007] eKLR.

31. I am not satisfied and no evidence has been brought forth to indicate and/or establish that the goods proclaimed and eventually attached fall within the exemption under Section 16(1)(g) of the Distress for Rent Act and I so find. However, if any files and other documents belonging to the Tenant’s clients were carried away, then they ought to be returned to him forthwith and without any conditions.

32. The Tenant has alluded in his submissions that the Landlord required leave to levy distress for rent (see paragraph 52 of the Tenant’s submissions). The true position is that no leave from court is necessary when a Landlord is exercising his/her/its rights to levy distress under Section 3(1) of Cap 293.

33. The prayers sought by the Tenant under paragraph (d), (e) and (f) of the Reference cannot therefore be granted as I find nothing illegal and/or irregular in the manner the Landlord carried out the levy of the distress for rent. For the same reasons, I do not find any basis upon which the Tenant can be awarded general damages and/or the costs of the Reference.

34. In concluding this matter, I do not find any merits in the Tenant’s Reference and the same is dismissed with costs to the Respondents.

DATED, SIGNED AND FILED VIRTUALLY AT NAIROBI THIS 23RD DAY OF MAY 2025HON. CYPRIAN MUGAMBI - CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Ndambiri, Tenant and Mr. Ooko holding brief for Mr. Kanjama SC for the RespondentMr. Ndambiri: I seek a 30-day stay of execution.Mr. Ooko: No objection.Court: There shall be a stay of execution for 30 days.HON. CYPRIAN MUGAMBI - CHAIRPERSONBUSINESS PREMISES RENT TRIBUNAL