[2025] KEBPRT 284 (KLR)

Estate of the Late Josiah Muli Wambua v Peter Mwara Daniel & Nancy Mwara t/a Ever Bright Digital Academy (Tribunal Case E290 of 2024) [2025] KEBPRT 284 (KLR) (9 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 284 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E290 of 2024

J Osodo, Chair & Gakuhi Chege, Member

May 9, 2025

THE ESTATE OF THE LATE JOSIAH MULI WAMBUA………...

Between

The Estate of the Late Josiah Muli Wambua

Applicant

and

Peter Mwara Daniel & Nancy Mwara t/a Ever Bright Digital Academy

Respondent

Ruling

A. Dispute Background 1. The landlord/applicant moved this Tribunal vide a Reference dated 2nd December 2024 under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 with a complaint of non-payment of rent by the respondent/tenant.

2. The landlord filed a Notice of Motion under a Certificate of Urgency dated 2nd December 2024 seeking for the following orders; -i.That the application be certified as urgent.ii.That the Tribunal grants an order of injunction restraining the tenant from removing any property from the suit premises pending the hearing and determination of the application.iii.That the Tribunal grants orders compelling the tenant to clear the rent arrears accumulated in the sum of Kshs 2,179,750 pending the hearing and determination of the application.iv.That the Tribunal grants the landlord an order to levy distress for rent.v.That the Tribunal waives the 10% distress fee in the event that the order for distress is issued.vi.That the OCS Mtwapa Police Station be ordered to levy distress.vii.That costs of the application be granted.viii.That any other order be granted.

3. The application is supported by an affidavit of even date in which the landlord deposes that in 2017, a tenancy agreement was made with the tenant to pay Kshs 65,000 monthly in advance for the premises. A copy of the unsigned agreement is annexed as “MW-1”.

4. That the tenant defaulted in rent payment for several months thereby accruing arrears amounting to Kshs 2,179,750 as of 31st October 2024. A copy of the tenant’s statement of account is annexed as “MW-2”.

5. That despite several notices and a demand letter issued on 12th November 2024, the tenants failed, neglected, or refused to pay. One of the tenants, Mrs. Nancy Mwara, declined to receive the demand letter, claiming her husband was away, and later acknowledged the arrears but made an unfavorable settlement offer.

6. That the landlord claims to have suffered immeasurable loss due to the breach and seeks the Tribunal's intervention to compel the tenants to clear all outstanding rent arrears, labeling the tenants as habitual defaulters who pay irregularly and at their convenience.

7. The application is opposed vide a replying affidavit dated 4th February 2025 in which the tenant deposes that in 2014, he and his wife approached Mr. Michael Nthenge Wambua, who was the known administrator of the estate of the late Josiah Muli Wambua, and verbally agreed to lease 1. 5 acres of land (Plot No Mtwapa, LR No 9112/18) at a monthly rent of Kshs 60,000 to build a school. That a formal lease dated 1st February 2015 was signed and they proceeded with construction. A copy of the said agreement is annexed as “PW-2”.

8. Over the years, the school premises were developed at a cost of Kshs 16. 7 million as at the year 2025. A copy of the valuation report is annexed as “PWD-3”.

9. The tenant asserts that their only source of income is school fees, which is unreliable due to dependence on bursaries and sponsors. That despite the challenges in collection of school fees, the tenant has always endeavored to pay rent on time. That the school began experiencing rent arrears after the COVID-19 pandemic forced closure for over a year.

10. That several letters were written to Mr. Nthenge requesting for a rent waiver for the closed period, but no waiver was granted. A copy of the letter requesting Mr. Nthenge to waive rent is annexed as “PWD-4”.

11. That confusion arose about who was legally collecting rent between Mr. Nthenge or the estate of the late Josiah Muli Wambua, especially after a letter in November 2024 notified the tenant that a new debt collector had been appointed by the estate.

12. Despite paying Kshs 195,000 under protest after a proclamation notice annexed as “PWD-6” was issued by Makini Auctioneers in December 2024, the tenant received a subsequent letter dated 17th January 2025 threatening eviction.

13. That the lease had expired in 2017 without renewal, and the tenant claims no notice was given for a rent increase to Kshs 65,000. That the tenant requests permission to clear the arrears in monthly installments of Kshs 60,000 as well as the monthly rent to avoid distress that would negatively affect the students' education, emphasizing that the school is now more financially stable.

14. The landlord filed a further affidavit in response to the above-mentioned affidavit dated 18th February 2025 in which he deposes that the tenant has admitted to rent arrears amounting to Kshs 2,179,750 as of 2018 and that the landlord acted in good faith by waiving rent during the COVID-19 period for 2020–2021.

15. That the landlord disputes the tenant’s proposed payment plan of Kshs 60,000 per month, arguing it is prejudicial and would take over 37 months to settle, which is not tenable. The landlord also asserts their right to levy distress for rent under the applicable law and highlights that the tenant has had ample time to settle the rent due. The landlord also states that the default has negatively impacted the landlord's financial operations.

16. The Tribunal ordered that the matter be disposed of by way of written submissions. Only the landlord filed submissions dated 9th April 2025. At the court hearing on 10th April 2025, the tenant stated that they did not intend to file their submissions.

17. We shall consider the landlord’s submissions as well as all the documents filed by both parties while dealing with the issues for determination; -

B. Issues for determination 18. The following issues arise for determination; -a.Whether the landlord is entitled to the orders sought in the application dated 2nd December 2024. b.Who shall bear the costs of the application?

Issue (a) Whether the landlord is entitled to the orders sought in the application dated 2nd December 2024. 19. The landlord/applicant moved this tribunal seeking for an order to restrain the tenant from removing any property from the suit premises, an order compelling the tenant to clear the rent arrears accumulated in the sum of Kshs 2,179,750 together with an order to be allowed to levy distress for rent.

20. The landlord in his submissions as well as affidavits filed herein states that the tenant is in arrears of Kshs 2,179,750 and that the tenant’s proposal to settle the rent arrears in monthly installments of Kshs 60,000 does not align with the landlord’s financial needs.

21. Upon careful review of the pleadings, affidavits, annexures, and submissions filed, it is evident that the tenant does not deny being in rent arrears. The amount of Kshs 2,179,750 is admitted by the tenant and corroborated by the tenant’s own statement of account annexed as "MW-2. "

22. While the tenant raises concerns over who was lawfully collecting rent; whether Mr. Michael Nthenge Wambua or the administrators of the estate, there is insufficient evidence that such confusion negated the obligation to pay rent, especially after the estate's formal notification appointing a debt collector.

23. The tenant’s claim that the lease agreement expired in 2017 and no notice was given for rent increment to Kshs 65,000 lacks legal merit. In absence of a renewed lease but with continued occupation and payment of rent (albeit inconsistently), the tenancy became a controlled tenancy governed by Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya.

24. The landlord has sufficiently demonstrated that notices and demand letters were issued, and that significant time has lapsed since the arrears began accruing in 2018. The tenant, despite challenges stemming from the COVID-19 pandemic and fee payment delays, has not shown sufficient effort to engage consistently or settle the arrears in a meaningful way. Moreover, the landlord's good faith is noted in waiving the rent for 2020–2021.

25. The tenant's proposal to repay Kshs 60,000 monthly would result in over 3 years of repayment, during which the landlord remains prejudiced and unable to enjoy the fruits of their investment.

26. In the case of Samuel Kipkori Ngeno and another v Local Authorities Pension Trust (Registered Trustees) & another (2013) eKLR at paragraphs 9 and 12, the superior court held as follows; -“9. A tenant’s first and main obligation is to pay rent as and when it becomes due for the landlord has the right to an income from his investment. Why would a tenant allow himself to fall into such huge arrears of rent?

“12. The temporary injunction sought in the present application is an equitable remedy at the court’s discretion. He who comes to equity must come with clean hands. A tenant who is in huge arrears of rent is underserving of the court’s discretion. The court cannot be refuge of a tenant who fails to meet his principal obligation of paying rent as and when it becomes due”.

27. In light of the foregoing decision which is binding upon us, we find that the landlord has a right to rental income and the Tribunal shall order that the application herein be allowed

Issue (b): Who shall bear the costs of the application? 28. Under Section 12(1)(k) of Cap. 301, Laws of Kenya, costs of any suit before this Tribunal are in its discretion but always follow the event unless for good reasons otherwise ordered. In this case, costs of the application shall be borne by the tenant/respondent.

C. Orders: 29. In conclusion, the following final orders commend to us; -a.The application dated 2nd December 2024 is allowed.b.The costs of the application assessed at Kshs 25,000 is awarded to the landlord/applicant.c.Reference dated 2nd December 2024 is settled in terms.d.File marked closedIt is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9TH MAY 2025HON. JOYCE AKINYI OSODO - (PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGE - (MEMBER)In the presence of:Ms. Wambui holding brief for Omwanza for the Landlord/applicantNo appearance for the tenant.