[2022] KEBPRT 142 (KLR)
The Tribunal found that the applicant admitted to being in rent arrears, which constitutes a breach of the tenancy agreement. As a result, the applicant was not entitled to the equitable remedy of an injunction, which is only available to parties who approach the court with clean hands. The Tribunal further held...
Source-derived case information.
- Citation
- [2022] KEBPRT 142 (KLR)
- Parties
- Applicant: Joseph Kangethe Gitau; Respondent: Woodtime Limited
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E230 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- application dismissed
- Judges
- P May
- Legal Topics
- Distress for Rent, Injunctive Relief, Tenant Landlord Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kangethe Gitau
Applicant
Woodtime Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the landlord's levying of distress for rent was lawful under the circumstances.
- 2 Whether the tenant is entitled to a temporary injunction restraining the landlord from levying distress.
Ratio Decidendi
The Tribunal found that the applicant admitted to being in rent arrears, which constitutes a breach of the tenancy agreement. As a result, the applicant was not entitled to the equitable remedy of an injunction, which is only available to parties who approach the court with clean hands. The Tribunal further held that the landlord's right to levy distress for rent had crystallized, as the only requirement for such action is the existence of rent arrears, which was not denied by the tenant. The Tribunal relied on statutory and case law to affirm the landlord's right to distress and dismissed the application for lack of merit.
Court Disposition
application dismissed
Orders
- The application for temporary injunction is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
Gitau v Woodtime Limited (Tribunal Case E230 of 2022) [2022] KEBPRT 142 (KLR) (Civ) (15 July 2022) (Ruling)
Neutral citation: [2022] KEBPRT 142 (KLR)
Republic of Kenya
In the Business Premises Rent Tribunal
Civil
Tribunal Case E230 of 2022
P May, Vice Chair
July 15, 2022
Between
Joseph Kangethe Gitau
Applicant
and
Woodtime Limited
Respondent
Ruling
1. The application before me is the tenant’s application dated 11th March, 2022 which sought for orders of temporary injunction against the landlord. The application is premised on the grounds set on the face of the application and in the supporting affidavit deponed by the applicant.
2. The applicant contends that the landlord’s actions of instructing an auctioneer to levy distress are unlawful and illegal as he paid the disputed rent arrears save for the months of January and February, 2022. He was therefore apprehensive that the landlord would proceed to attach the movable goods to his detriment thus prompting the filing of the present application and reference.
3. The application was placed before the Honorable Tribunal on 15th March, 2022 where interim orders of injunction were issued against the landlord pending inter partes hearing. Further, the tenant was ordered to effect service upon the respondent.
4. The respondent duly entered appearance by appointing the firm of Meritad Law Africa LLP, Advocates to act on their behalf. The application was opposed vide the detailed replying affidavit of 20th April, 2022.
5. The landlord gave a chronology of how the rent arrears accrued and the numerous reminders that they had given to the tenant to regularize the said rent arrears .
6. The parties were directed to canvass the application by way of written submissions.
7. There has been compliance by both parties. I have considered the said submissions and will proceed as follows:
8. The issues for determination as framed by the parties in their submissions are as follows:a.Whether the levying of distress was done within the purview of the law?b.Whether the tenant is deserving the grant of the orders sought
9. On the first issue, the parties seem to be in agreement that there are rent arrears that has accrued. The tenant however disputes the actual rent due. Both parties have attached documentation to support their respective positions.
10. The tenant having admitted to be in rent arrears is not deserving of the orders of injunction which he has sought. In case of Julius Mogalla Gellode T/A Esmart Technical College Vs Ouru Power Ltd and Joseph Nyachoti T/A Minimax Automotives [2016] eKLR the court stated at paragraph 74 of the ruling;“I find that once the Plaintiff has acknowledged that he is indeed in arrears of rent, it means that he is in breach of the most critical term of their tenancy and being a defaulting party, he cannot be seen to approach the court for an order of injunction which is an equitable relief/remedy only available to parties who come to court with clean hands.”
11. I am guided by the above finding of the honourable judge in declining to issue injunctive orders in favour of the Tenant/Applicant.
12. Further in the case of Peter Nthenge Vs Daniel Itumo & Another Nairobi HCCC No 1242 of 1974 it was held;“The right of a Landlord to distrain for rent arises at common law and need not be expressly reserved. It enables the Landlord to secure the payment of rent by seizing goods and chattels found upon the premises in respect of which the rent or obligations are due. Formerly, the right to distress…”
13. In the present application the right to levy distress had crystallized as was discussed in the case of John Nthumbi Kamwizhi Vs Asha Akumu Juma, Embu HCCA No. 7A of 2016, where the court stated at paragraph 32 of the judgement;“The right 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…”
14. And finally, section 3 of the Distress for Rent Act Cap 296 provides as follows;“Subject to the provisions of this Act and any other written law any person having any rent or rent service in arrears and due upon a grant, lease demise 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.
15. It is therefore clear that the only requirement for the exercise of the right to levy distress by the Landlord, is there being rent in arrears. In this case, the Tenant does not deny being in rent arrears. Besides there was an order that the rent arrears be cleared within a certain timeframe. The same has not been complied with.
16. Having made the above findings, it is clear that the application is without merit. The same is dismissed with no orders as to costs.It is so ordered.
RULING SIGNED, DATED AND DELIVERED THIS 15TH DAY OF JULY 2022. HON. P. MAYVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Musebe for the Landlord/RespondentNo appearance for the Tenant