[2021] KEBPRT 418 (KLR)
The Tribunal held that the tenant's claim of having paid goodwill to the landlord, even if true, does not justify non-payment of rent. The tenant admitted that business operations had ceased, corroborating the landlord's assertion that the premises remained closed. The Tribunal found that the landlord is entitled to...
Source-derived case information.
- Citation
- [2021] KEBPRT 418 (KLR)
- Parties
- Applicant: Florence Wanjiku Muthee, James Gathima Njuguna, Ben Ngetta Muraguri, Juliah Warigia Gathungu, Rodah Mwihaki Kambi; Respondent: Juliah Wanjiru Mwangi
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 86 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Landlord's Application for Police Assistance to Levy Distress for Rent
- Outcome
- Application allowed in favour of the landlord.
- Legal Topics
- Distress for Rent, Landlord Tenant Disputes, Rent Arrears, Covid 19 Impact on Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Florence Wanjiku Muthee, James Gathima Njuguna, Ben Ngetta Muraguri, Juliah Warigia Gathungu, Rodah Mwihaki Kambi
Applicant
Juliah Wanjiru Mwangi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Landlord's Application for Police Assistance to Levy Distress for Rent
Legal Issues
- 1 Whether the landlord is entitled to police assistance to break in and attach the tenant's proclaimed goods for rent arrears.
- 2 Whether the tenant's claim of goodwill payment is a valid defense to non-payment of rent.
- 3 Whether the effects of the covid-19 pandemic justify postponement or waiver of rent obligations.
Ratio Decidendi
The Tribunal held that the tenant's claim of having paid goodwill to the landlord, even if true, does not justify non-payment of rent. The tenant admitted that business operations had ceased, corroborating the landlord's assertion that the premises remained closed. The Tribunal found that the landlord is entitled to levy distress for rent under section 3 of the Distress for Rent Act, Cap 293, Laws of Kenya, and that the landlord's application for police assistance to break in and attach the tenant's proclaimed goods was merited. The Tribunal rejected the tenant's reliance on the economic effects of the covid-19 pandemic as a basis for waiving or postponing rent obligations in the absence...
Court Disposition
Application allowed in favour of the landlord.
Orders
- The O.C.S Kamukunji Police Station shall provide security to Harrison Kihara Ngunjiri t/a Hariki Auctioneers for the purposes of breaking into and attaching the tenant's proclaimed goods in shop no. 2 on L.R. No. 209/136/18 known as Kiriti House.
- The tenant shall pay costs of Kshs.15,000 to the landlord for this application.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 86 OF 2021 (NAIROBI)
FLORENCE WANJIKU MUTHEE
JAMES GATHIMA NJUGUNA
BEN NGETTA MURAGURI
JULIAH WARIGIA GATHUNGU
RODAH MWIHAKI KAMBI.......................LANDLORDS/APPLICANTS
VERSUS
JULIAH WANJIRU MWANGI..........................TENANT/RESPONDENT
RULING
1. By a motion dated 22/1/2021, the Landlord/Applicant is seeking for an order for police assistance to HARIKI AUCTIONEERS to break in and attach the Tenant’s proclaimed goods in shop no. 2 on L.R. No. 209/136/18 (KIRITI HOUSE).
2. It is the Landlord’s case that the Tenant has refused to pay rent which had fallen into arrears of Kshs.427,000/- as at 22nd January 2021.
3. Upon being proclaimed by the Auctioneer on 12th October 2020, the Tenant is alleged to have closed the business premises in an effort to frustrate attachment of the proclaimed goods.
4. A notice of appointment of advocates was filed by KAMOTHO NJOMO & CO. Advocates on behalf of the Respondent/Tenant but no response was filed thereafter.
5. I have however noted that in the submissions dated 19th May 2021 filed by the Tenant’s advocates, a replying affidavit is said to have been filed in which it was deposed that the Tenant paid Kshs. 4 million as goodwill before taking up possession of the premises.
6. The Tenant further submits that the said goodwill was to be refunded upon the Tenant vacating the premises and that the Landlord has never issued receipts as required by Law.
7. It is submitted that the Tenant’s operations were grounded to a halt as a result of covid-19 pandemic.
8. Relying on the case of Amra Leasing Limited – vs- DAC Aviation (E.A) Limited and 2 others (2020) eKLR in which rent payment was postponed for 9 months, the Tenant submits that the Tribunal should take judicial notice of the fact that the pandemic has had devastating effects on the economy and various sectors of the economy and that rent had been waived for a considerable deration to give business a new lease of life.
9. On the other hand, the Landlord submits that the Tenant has not given any legal explanation as to why she does not want to settle the arrears despite the Landlord’s denial that they took any goodwill from her. The claim of payment of goodwill is referred to as a mere allegation without proof by the Landlord.
10. I have considered the application and the pleadings including the submissions by the Tenant which refer to a replying affidavit and the only issue for determination is whether the application ought to be allowed or rejected.
11. Having taken into consideration all the materials placed before me, I make the following findings:-
(i) The Tenant’s claim for payment of goodwill against the Landlord cannot be the basis for non payment of rent even if it was proved to be true.
(ii) The Tenant admits that her business grounded to a halt which confirms the Landlord’s allegation that the premises have remained closed.
(iii) The Landlord is entitled to levy distress for rent under section 3 of the Distress for Rent Act Cap 293, Laws of Kenya with or without leave of this Tribunal.
12. In the premises, I allow the Landlord’s application in the following terms:-
(a) The .O.C.S KAMUKUNJI POLICE SATION shall provide security to HARRISON KIHARA NGUNJIRI T/A HARIKI AUCTIONEERS for the purposes of breaking into and attaching the Tenant’s proclaimed goods in shop no. 2 on L.R. NO. 209/136/18 known as KIRITI HOUSE.
(b) The Tenant shall pay costs of Kshs.15,000/- to the Landlord for this application.
It is so orders.
DATED, SIGNED & DELIVERED VIRTUALLY THIS 21ST DAY OF JULY 2021.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
In the presence of:-
No appearance by parties despite the matter having been cause listed.