[2024] KEBPRT 313 (KLR)

George W. Murago t/a Indosteel Hardware v Kamuchinde Co. Ltd t/a Stephen Kinugu Ndegwa (Tribunal Case E1063 of 2023) [2024] KEBPRT 313 (KLR) (29 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 313 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1063 of 2023

N Wahome, Member

February 29, 2024

Between

George W. Murago t/a Indosteel Hardware

Tenant

and

Kamuchinde Co. Ltd t/a Stephen Kinugu Ndegwa

Landlord

Ruling

1. This suit was commenced by the Reference dated 27. 10. 2023. It was said to be founded on Section 12 of the Landlord and Tenant (shops, hotels and Catering Establishments Act) Cap 301 which we shall refer to hereinafter as the Act. The complaint by the Applicant was that, the Respondent had effected an illegal distress for rent without notice and that they intended to evict him.

2. He also filed with the Reference a notice of motion Application of even date. The same was filed under certificate of urgency. In the Application he sought that the Respondents be restrained from disposing off or in any way dealing with the goods attached from him on the 23. 10. 2023. He also sought for the release of the goods to him.

3. On their part, the Respondents filed the replying affidavit sworn on the 8. 11. 2023 sworn by Stephen Kinugu Ndegwa. They also filed their submissions dated 27. 11. 2023.

4. The Tenant was afforded an opportunity on the 14. 11. 2023, 11. 12. 2023 and 24. 01. 2024 to file a supplementary affidavit and submissions but none is in the court file or the court portal at the time of writing this Ruling.

The case for the Tenant 5. The case for the Tenant is that;i.He is a tenant in the landlord’s premises known as Title No. 36/111/985 at Eastleigh South at a monthly rent of Kshs. 45,000/=.ii.Occupied the demised premises since the 1990’s where he operates a hardware business.iii.At one time he ran into rent arrears of Kshs. 500,000/= due to the Covid pandemic but has since settled Kshs. 300,000/= leaving a balance of Kshs. 200,000/= as he pays the current rent.iv.The landlord instructed for distress of rent which was unlawful and he was not issued with any notice and the attachment of his stock and tools of trade has paralysed his business.v.That he needed this tribunal to order for the release of his stock and tools of trade.vi.The claim by the landlord at Kshs. 530,000/= as per the proclamation by M/S High Class Auctioneers was not correct.

The case for the Landlord 6. The landlord’s case is that;-i.That by a Ruling dated 8. 6.2023, in a case that was not given and via an order that was not attached to these proceedings, they were allowed to cause distress to recover Kshs. 530,000/= in rent arrears.ii.The distress for rent was lawful as it was allowed by the law and by the court order.iii.By a letter dated 18. 9.2021, it was communicated to the Tenant that his arrears in rent were Kshs. 540,000/= - annexure “SKN 1”.iv.The parties entered into a rental payment agreement dated 9. 9.2022 where the rent in arrears by then was agreed at Kshs. 500,000/= - annexure “SKN 2”.v.The rent owed at Kshs. 530,000/= is not in dispute and the Tenant should be made to pay the same.

7. In their submissions in support of the dismissal of the Applicants case, the Respondents relied on the case of; Peter Nthembi Kamwithi vs Asha Akumu Juma [2018] eKLR, andSamuel Wanyoike Igecha & Another vs James Gitau John & 2 Others [2021] eKLR.

8. Having looked at all the materials placed before me, I am of the considered opinion that the issues for determination in this matter are the following;-A:Whether the distress for rent by the Respondents was lawful.B:Whether the Applicants Application dated 27. 10. 2023 has meritC:Who should bear the costs of this suit?.

Issue No. A: Whether the distress for rent by the Respondents was lawful 9. The Respondents in their annexure “SKN 1” and “SKN 2” demonstrated that the rent in arrears by the Applicant ranged between Kshs. 500,000/= and Kshs. 540,000/=. The distress for rent was for Kshs. 530,000/=. The two documents showing rent arrears were duly signed by the Applicant and there was no rebuttal to the same or at all.

10. The Respondents in their Replying affidavit assert that they were granted orders by Hon. S.A. Opande (Principal Magistrate) to levy distress for Kshs. 530,000/= on the 8. 6.2023. However, I am not persuaded by that averment, the least the Respondents would have done is to cite the number of the case and also annex the purported court order. It is unlikely that such a case or order ever existed. What I can only confirm from all this is that there is a Judicial Officer by the name of Hon. S.A. Opande a Principal Magistrate.

11. As that ……., the Respondents in my view were entitled to levy distress for the rent in arrears and did not require the permission of the magistrates court or this tribunal to effect the same. The only requirement of the law is that there is rent in arrears and which is also admitted by the Tenant though he asserts that it is only Kshs. 200,000/=.

12. Section 3(1) of the Distress for Rent Act provides that;-“Subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrear and due upon a grant, lease, service or contract shall have the same remedy by distress for the recovery of that rent or rent service as is given by the common law of England in a similar case.”This position is very well elaborated by decided cases in particular by the case of; John Nthumbi Kamwithi vs Asha Akumu Juma [2018] eKLR, where the court on the twin issue of whether a landlord need permission to levy distress and the requirement of there being rent in arrears held that;-“I find that the Appellant had no obligation to levy distress. The fact that the tenancy is controlled does not mean that the landlord applies to the tribunal to levy distress. Distress is a right the landlord is entitled to for recovery of rent. If the Tenant choses …..he/she could file a reference to the tribunal for orders in objection to the distress.”

13. The court went on to hold that;-“This right (to levy distress) serves the purpose of a remedy for the landlord to recover rent that may be in arrears. For this right to be enforced, there must be rent in arrears.”This is therefore to say that the Respondents had an inherent right to levy distress as they did and that they did not need the permission of the same to carry out the same. Their only requirement was confirmation that there was rent in arrears which was expressly admitted by the Tenant.The distress for rent by the Respondents was therefore lawful.

Issue No. B: Whether the Applicants Application dated 27. 10. 2023 has merit 14. The Applicants grievances were that the distress for rent by the Respondents was unlawful in that the permission of this Tribunal had not been sought. The other complaint was the rent in arrears was disputed. As earlier determined, the Respondents did not require any permission to execute their right to distress for rent. The Applicant also admitted to owing the Respondents at least Kshs. 200,000/=, at the monthly rent of Kshs. 45,000/= that is rent in arrears for four and half (4 ½) months.

15. Under Section 7(1)(b) of the Act, it is a ground for termination of tenancy if there is rent in arrears of more than two (2) months. The same provides that;-“It is a ground to terminate tenancy, if the Tenant has defaulted paying rent for a period of two (2) months after such has become due or payable or has persistently delayed in paying rent which has become due or payable.”

16. This therefore demonstrates that none payment of rent for more than two (2) months can attract even more severe and drastic consequences than merely distress for rent. They can form the foundation for termination of the landlord/tenant relationship.

17. It is therefore my finding that the Application by the Applicant lacks any merit and has failed to satisfy the principles for grant of the orders sought as laid down by the laws classicus case of; Giella vs Cassman Brown [1973] EA 358 which provides that for an application for injunction to succeed, it must meet the following threshold;-“First, an application must show a prima facie case with a probability of success, secondly, that the Applicant might otherwise suffer irreparable injury that cannot be adequately compensated by an award of damages and thirdly, when the court is in doubt, it will decide the Application on the balance of probabilities.”

18. It is my view that the Respondents enforcing their rights under the law, it is impossible for the Applicant to satisfy the principles in Giella vs Cassman Brown as espoused above. I would therefore dismiss the Applicants application.

19. I am conscious that the reference dated 27. 10. 2023 is found on the same issues and seeks for the same reliefs as in the Application thereof and of even date. It is my determination that by the decision on the Application, there is nothing left of the reference and the same is determined in the same terms of the Application. I would also dismiss the same.

Issue No. C: Who should bear the costs of this suit? 20. The proviso to Section 27 of the Civil Procedure Act provides that, costs should follow the event. I do not see any reason nor justification to depart from that wisdom. I award costs to the Respondents.

21. In the final analysis, the orders that commend themselves to me are the following;-a.That the Reference and Application both dated 27. 10. 2023 are dismissed.b.That the Respondents were within their rights to levy distress against the Applicant in recovery of rent in arrears.c.That the Respondents are awarded costs assessed at Kshs. 20,000/=.Those are the orders of the court

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT KAKAMEGA THIS 29THDAY OF FEBRUARY, 2024. HON. NDEGWA WAHOME, MBS - MEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of; M/S Aluondo for the Respondents and in the presence of Ajulu holding brief for Mr. Kuria for the Tenant.