[2021] KEBPRT 408 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 199 OF 2021

JAIRUS MUENDO & FRANCIS MULWA

T/A TWELVE BROTHERS...................................................................TENANTS/APPLICANTS

VERSUS

KATHUMO HOLDINGS LTD .................................................LANDLORD/1ST RESPONDENT

BIG STEP ENTERPRISES AUCTIONEERS..................AUCTIONEERS/2ND RESPONDENT

RULING

PARTIES AND THEIR REPRESENTATIVES

1. The Applicants herein are the Tenants occupying the premises on Plot No. 71D, Kalundu Market within Kitui Municipality (hereinafter referred to as the ‘Suit Premises’), within the Republic of Kenya.

2. The Applicants are represented by the Firm of Kimanthi & Associates info@kimanthi.com

3. The 1st Respondent is the Landlord of the Suit Premises.

4. The 2nd Respondent is a Firm of Auctioneers appointed by the 1st Respondent.

5. Both the 1st and 2nd Respondents are represented by the Firm of J.M. Muinde & Company Advocates. Josephmuinde24@gmail.com

DISPUTE BACKGROUND

6. Vide a Notice of Motion Application dated 26th February 2021 and Reference of even date, the Applicants herein approached this Tribunal in pursuit of certain orders. However, after carefully perusing the Notice of Motion, I find that the same does not disclose any orders capable of being granted by this Tribunal. I will therefore proceed to determine the matter on the premise of the Reference by the Applicants which seeks the intervention of this Tribunal to interrogate the legality/lawfulness or otherwise of attachment of the Applicants’ goods and threat of eviction from the Suit Premises.

THE APPLICANTS CASE

7. The said Reference by the Applicants dated 26th February 2021 is supported by key grounds being that Applicants’ rights have been violated by the Landlords/ Respondents’ act of illegal attachment of the Applicants’ goods and threat of eviction from the Suit Premises on 4th February 2021.

8. The Applicants have sworn an undated Supporting affidavit in support of their case. The said Affidavit give the background, context and procedural history of the dispute in respect of the Suit Premises and proceed to provide the evidentiary support to the grounds above stated. They swore that the present suit is a matter whose gravity is undeniable as it touches on the Bill of rights relevant to the Applicants.

9. They further, aver that the 1st Respondent by the illegal attachment of their goods and threat of eviction has subjected the Applicants’ business into agony and confusion thereby throwing the Applicants and their workers into an economic quandary. It is their position that this Tribunal is obligated to stop the illegal attachment of their goods and threat of eviction from the Suit Premises by the Respondents.

THE RESPONDENTS’ CASE

10. The 1st Respondent herein, Kathumo Holdings Limited filed a Replying Affidavit sworn by its Director, Charles Mulinge on 16th March 2021,asserting that the sometime in 2019, the Parties herein executed a Lease Agreement whose terms the Applicants have breached by inter alia, failing to pay rent as agreed between the Parties, subletting the premises to third parties and construction of permanent structures on the Suit Premises contrary to the terms of the alleged Lease Agreement.

11. The 1st Respondent further averred that the Applicants failed in their tenancy obligations by habitually accumulating arrears to the tune of Kshs. 400,000. 00 and that due to the outstanding amounts, it was untenable to continue having the Applicants occupy the Suit Premises.

12. Further, it was the 1st Respondent’s averment that sometime in February 2020, it wrote to the Applicants drawing their attention to the various breaches of the alleged Lease Agreement and issued them with a termination notice as was provided therein.

13. The 1st Respondent further averred that by a letter dated 11th January 2021 they instructed the 2nd Respondent to levy distress for rent on the Suit Premises. Surprisingly, the 2nd Respondents found other individuals running businesses on the Suit Premises, instead of the Applicants. Further, that by a letter dated 17th February 2021 the Applicants did not deny having committed serious breaches of the alleged Lease Agreement and instead pleaded to be given more time to pay the rent arrears after improvement of the business following the outbreak of Covid -19 pandemic.

SUBMISSIONS

14. The Application proceeded for hearing before this Tribunal and was canvassed by way of written submissions. Applicants submission are dated the 28th of May 2021 and Respondents submissions are dated the 10th May 2021 notable filed 18 days before the applicants. I have considered both and because they contain mainly factual details I see no need to restate the same again.

ANALYSIS AND DETERMINATION

15. I have given full consideration to the Applicants’ Notice of Motion Application, the rival affidavits and submissions. Before I go into the merits of the Application I wish to state that since the jurisdiction of this Tribunal was not contested by the Parties herein, the same is considered in the affirmative.

16. In my respectful view, I find that the sole issue that falls for determination is whether the Applicants are entitled to grant of the reliefs sought.I shall proceed to consider and determine the same as follows:

17. I have noted that both Parties acknowledge the existence of a Lease Agreement that gave rise to the present contractual relationship between them. However, the said Lease Agreement has not been produced before this Tribunal and therefore it is gravely difficult to ascertain whether the alleged breaches of its provisions occurred. I am therefore in no doubt that the purported Lease Agreement having not been produced before this Tribunal for verification, is a matter that this Tribunal cannot pronounced itself substantively in respect of any alleged breaches.

18. I now turn to the question of rent arrears. It is the 1st Respondent’s case that the Applicants accrued rent arrears to the tune of Kshs. 400,000. 00 as at March 2021. Vide a letter dated 17th February 2021,the Applicants Clerk Wambua and Twelve Brothers admitted and acknowledged the said arrears and sought more time to make payments. On this ground, I am persuaded and consequently find that the Applicants are in breach of their obligation of payment of rent as and when it falls due under the Agreement.

19. As to whether the Suit Premises were a Property of the 1st Respondent or the County Government of Kitui, no evidence has been produced before this Tribunal to effect proof of ownership of the Suit Premises. Therefore, the Applicants’ claim that the suit Premises were a Property of the County Government of Kitui fails for lack of proof.

20. The other issue for determination is the legality or otherwise of the manner in which the Respondents levied distress for rent upon the Applicants, allegedly attached the Applicants’ property and threatened to evict them from the Suit Premises. From the onset, it is clear that no goods relating to the Applicants were attached by the 2nd Respondent as no proof has been proffered before this Tribunal.

21. The right to levy distress for rent is provided for under the Distress for Rent Act, Cap 293 Laws of Kenya. Section 2of the said Act provides for right of distress and states 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, 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.”

22. Section 5 of Cap 293 further states that:

“Any person having rent in arrear and due upon a demise, lease or contract after the ending or determination of the demise, lease or contract, may distrain for the arrears after the ending or determination in the same manner as he might have done if the demise, lease or contract had not been ended or determined.”

23. The 1st Respondent issued a termination notice of the Lease Agreement to the Applicant 1st February 2020 which notice has not been availed before this tribunal but a letter dated 19th February 2021 has acknowledged the existence of the same and at the bottom by a signature of one Stanley Kyalo Muli and Crack Wambua Munyao on behalf of 12 brothers and they dated the said acknowledgement 5th March 2020. There is no clarity on who the 12th Brothers are in person and this tribunal cannot therefore speculate on the same but it appears that the applicants herein are part of the group having described themselves as such in their pleadings and so are the above two through the various correspondences produced herein. Action of any one of them will therefore bind the others in the absence of proof of limited liability. There is no opposition to this Notice neither is there a reference opposing the notice. The only reference before this tribunal is for attachment of goods for rent arrears subject matter of this proceedings.

24. Subsequently, on 11th January 2021 the 1st Respondent instructed the 2nd Respondent to levy distress for rent upon the Applicants. Thereafter, the Applicants in acknowledging the rent arrears requested for some time to settle the rent arrears which request was declined by the 1st Respondent vide a letter dated 22nd February 2021. In my respectful view, the import of the foregoing actions is that in so far as it concerned the 1st Respondent, the Lease Agreement had terminated and thus he proceeded to levy distress.

25. Section 15 of Distress for Rent Act provides thus;

“Where distress is made for any kind of rent justly due, and any irregularity or unlawful act is afterwards done by the party distraining, or by his agents the distress itself shall not be therefore deemed to be unlawful nor the party making it be deemed a trespasser ab initio, but the party aggrieved by the unlawful act or irregularity may recover full satisfaction for the special damage he has sustained thereby in a suit for that purpose;”

26. From the assertions of the Applicants they contend that they left the suit premises due to frustration from the landlord this assertion appears also to rob this tribunal of its jurisdiction as the landlord tenant relationship seems to have ended.

27. Considering the reasons advanced above I find the account of events given by the Respondents more reliable and proceed to make the following determination.

DETERMINATION

In view of the above, in addition to lacking jurisdiction, I find that the Applicants did not prove their case on a balance of probability.

The upshot is that the Applicants’ application dated 26th February 2021 and Reference dated even date lack merit and is dismissed with costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered this 30th July 2021 in the presence of Mayineholding brief for Mwindifor the Landlord and Kimathi for the Tenant.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL