[2025] KEBPRT 246 (KLR)

Manaseh Raymond t/a Stylish Grill Lounge & Grill v Zameta Holdings Ltd & another (Tribunal Case E023 of 2024) [2025] KEBPRT 246 (KLR) (Commercial & Admiralty) (14 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 246 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Commercial and Admiralty

Tribunal Case E023 of 2024

Gakuhi Chege, Chair & J Osodo, Member

April 14, 2025

Between

Manaseh Raymond t/a Stylish Grill Lounge & Grill

Applicant

and

Zameta Holdings Ltd

1st Respondent

Moco Auctioneers

2nd Respondent

Ruling

A. Dispute Background. 1. The tenant/applicant moved this Tribunal vide a motion dated 18th April 2024 seeking in material part for restraining orders against the landlord from removing the proclaimed goods from the suit premises pending hearing and determination of the application and reference.

2. The tenant/applicant further sought for an order compelling the landlord to produce a rent book and receipts for payments done by him for purposes of computation of the disputed rent arrears.

3. The application is supported by the affidavit of the tenant/applicant sworn on 18th April 2024 and the grounds on the face thereof. It is the tenant’s case that he has been in occupation of the suit premises erected on L.R NO. Central Kitutu/daraja Mbili/3XX8 on the basis of a lease agreement marked as annexure ‘MR2’ entered into with the landlord on 21st March 2022 for a period of 5 years.

4. It is deposed that the tenant was served with proclamation notices marked as annexure MR1 by Moco Auctioneers who were seeking to recover a sum of Kshs 804,000/= in rent arrears.

5. According to the tenant, the annual rent for the first year was Kshs 480,000/= which he paid in full and thereafter, rent was to be payable on quarterly basis. He paid Kshs 120,000/= on 10th July 2023 via Mpesa as per his annexure marked “MR3”.

6. On 13th October 2023, the landlord through his advocates wrote a demand letter for Kshs 530,000/= to the tenant and the latter responded through a letter marked as annexure “MR4” dated 18th October 2023 disputing the amount claimed.

7. It is the tenant’s contention that the rent arrears demanded from him is plucked from the air and as such, the intended distress is illegal. He however admits that some rent is in arrears but does not add up to Kshs 804,000/ as demanded by the landlord.

8. It is against the foregoing background that the tenant filed the instant proceedings seeking to restrain the illegal distress and a possible eviction from the suit premises.

9. Interim orders were given on 19th April 2024 in favour of the tenant, restraining the landlord from removing the proclaimed goods from the suit premises pending hearing of the application inter-partes on 16th May 2024. He also seeks that pending the hearing and determination of the application, the Auctioneers be ordered to return the said items/goods that were illegally removed from the suit premises.

10. Through a second application dated 23rd April 2024, the tenant moved this Tribunal seeking for restraining orders against the 2nd Respondent from selling, advertising for sale or in any way dealing with the attached goods.

11. It is deposed that the tenant made efforts to serve the respondents and the police with the court order on 22nd April 2024 as evidenced by the affidavit of service marked as annexure “MR2” but they defied the orders and proceeded to attach and collect the tenant’s belongings as per the inventory marked “MR3” & “MR4 a-f”. It is pursuant to the impugned acts that the tenant moved to this Tribunal.

12. On 26th April 2024, this Tribunal issued ex-parte orders against the 2nd respondent restraining it from selling, advertising for sale or in any way dealing with the attached goods pending hearing inter-partes on 16th May 2024.

13. The 1st respondent filed a replying affidavit sworn by Jephnei Nyakwama Orina on 10th June 2024 in which he deposes in material part that the tenant and the 1st respondent entered into a tenancy agreement on 21st March 2022 in which the initial monthly rent was Kshs 40,000/=.

14. The tenant was subsequently added more space as a result of which the monthly rent increased to Kshs 62,000. =. The tenant is accused of being irregular and partial in rent payments in contravention of the lease agreement. A demand letter marked as annexure “JN-2” dated 13th October 2023 is exhibited as evidence thereof.

15. The landlord instructed the 2nd respondent to recover the sum of Kshs 804,000/= as per the proclamation notice and rent statement marked “JN-3 (a) & (b)” respectively. It is further deposed that the goods were removed by the 2nd respondent from the suit premises on 22nd April 2024 at about 11. 00 A.M after expiry of the proclamation notice.

16. According to Jephnei Nyakwama Orina, the orders of 19th April 2024 were served via email upon him on 22nd April 2024 at 3. 41 P.M as per annexure “JON-1”, whereas, the 2nd respondent had collected the first batch of the proclaimed goods from the suit premises at 11. 00 A.M.

17. According to the respondents, the 14 days stipulated in law had lapsed by the time the proclaimed goods were collected from the suit premises. It is alleged that the initial proclamation was issued on 8th February 2024 as per annexure “JON-2” but the tenant compromised the first Auctioneer.

18. The tenant is accused of breach of contract and of failure to demonstrate that he would suffer irreparable loss and damage if the injunction orders sought are not granted in his favour.

Issues for determination. 19. The following issues arise for determination; -a.Whether the tenant is entitled to the reliefs sought in the application dated 18thApril 2024. b.Whether the tenant is entitled to the reliefs sought in the application dated 23rd April 2024. c.Who shall bear the costs of the applications?Issue (a) Whether the tenant is entitled to the reliefs sought in the application dated 18th April 2024.

20. The tenant/applicant moved this Tribunal vide a motion dated 18th April 2024 seeking in material part for restraining orders against the landlord from removing the proclaimed goods from the suit premises pending hearing and determination of the application and reference.

21. The tenant/applicant further sought for an order compelling the landlord to produce a rent book and receipts for payments done by him for purposes of computation of the disputed arrears.

22. It is the tenant’s case that he has been in occupation of the suit premises erected on L.r No. Central Kitutu/daraja Mbili/3XX8 on the basis of a lease agreement marked as annexure “MR2”" entered into with the landlord on 21st March 2022 for a period of 5 years.

23. The tenant was served with proclamation notices marked as annexure “MR1” by Moco Auctioneers who were seeking to recover a sum of Kshs 804,000/= in rent arrears.

24. According to the tenant, the annual rent for the first year was Kshs 480,000/= which he paid in full and thereafter, rent was to be payable on quarterly basis. He paid Kshs 120,000/= on 10th July 2023 via Mpesa as per his annexure “MR3”.

25. On 13th October 2023, the landlord through his advocates wrote a demand letter for Kshs 530,000/= to the tenant and the latter responded through a letter marked as annexure “MR4” dated 18th October 2023 disputing the amount claimed but admitted owing a sum of Kshs 240,000/= in rent arrears.

26. It is the tenant’s contention that the rent arrears demanded from him is ‘plucked from the air’ and as such, the intended distress is illegal. He however admitted in his supporting affidavit that some rent was in arrears but did not add up to Kshs 804,000/= as demanded by the landlord.

27. It is against the foregoing background that the tenant filed the instant proceedings seeking to restrain the alleged illegal distress and a possible eviction from the suit premises.

28. Through a replying affidavit sworn by Jephnei Nyakwama Orina on 10th June 2024, it is deposed in material part that the tenant and the 1st respondent entered into a tenancy agreement on 21st March 2022 in which the initial monthly rent was Kshs 40,000/=.

29. The tenant was subsequently added more space as a result of which the monthly rent increased to Kshs 62,000. =. The tenant is accused of being irregular and partial in rent payments in contravention of the lease agreement. A demand letter marked as annexure “N-2” dated 13th October 2023 is exhibited as evidence thereof.

30. The landlord instructed the 2nd respondent to recover the sum of Kshs 804,000/= as per the proclamation notice and rent statement marked “JN-3 (a) & (b)” respectively. It is further deposed that the goods were removed by the 2nd respondent from the suit premises on 22nd April 2024 at about 11. 00 A.M after expiry of the proclamation notice.

31. It is therefore the respondents’ case that the tenant’s application is an abuse of court process which is intended to delay the landlord’s exercise of its right to rent. The tenant is accused of having an intention t”o move his business items to a new premises in OYUGIS Town known as Ramogi Lounge” to frustrate the landlord’s process of distressing for rent.

32. The respondents therefore pray that the interim orders given herein be vacated to enable the landlord to proceed with recovery of the rent arrears under the Distress for Rent Act, Cap 293, Laws of Kenya.

33. The tenant did not file a further affidavit to controvert the replying affidavit filed by the respondents in opposition to his application. In his own advocates’ reply letter dated 18th October 2023 marked as annexure “MR-4”, the tenant admitted being in arrears of Kshs 240,000/=. He also admitted being indebted to the landlord in his supporting affidavit at paragraph 8. He has therefore not come to this Tribunal with clean hands.

34. In the case of Samuel Kipkori Ngeno & Another – vs- Local Authorities Pension Trust (Registered Trustees) & Another (2013) eKLR, at paragraphs 9 and 12, the Superior Court stated 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….”

“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 the refuge of a tenant who fails to meet his principal obligation of paying rent as and when it becomes due”.

35. By parity of reasoning, the tenant herein is undeserving of the equitable reliefs sought herein and his application is a candidate for dismissal.ISSUE (b) Whether the tenant is entitled to the reliefs sought in the application dated 23rd April 2024.

36. Through a second application dated 23rd April 2024, the tenant moved this Tribunal seeking for restraining orders against the 2nd Respondent from selling, advertising for sale or in any way dealing with the attached goods. It is deposed that the tenant made efforts to serve the respondents and the police with the court order on 22nd April 2024 as evidenced by the affidavit of service marked as annexure “MR2” but they deified the orders and proceeded to attach and collect the tenant’s belongings as per the inventory marked “MR3” & “MR4 a-f”. It is pursuant to the impugned acts that the tenant moved to this Tribunal.

37. On 26th April 2024, this Tribunal issued ex-parte orders against the 2nd respondent restraining it from selling, advertising for sale or in any way dealing with the attached goods pending hearing inter-partes on 16th May 2024.

38. The 1st respondent filed a replying affidavit sworn by Jephnei Nyakwama Orina on 10th June 2024 in which he deposes that the tenant and the 1st respondent entered into a tenancy agreement on 21st March 2022 in which the initial monthly rent was Kshs 40,000/=.

39. The tenant was subsequently added more space as a result of which the monthly rent increased to Kshs 62,000. =. The tenant is accused of being irregular and partial in rent payments in contravention of the lease agreement. A demand letter marked as annexure “JN-2” dated 13th October 2023 is exhibited as evidence thereof.

40. The landlord instructed the 2nd respondent to recover the sum of Kshs 804,000/= as per the proclamation notice and rent statement marked “JN-3 (a) & (b)” respectively. It is further deposed that the goods were removed by the 2nd respondent from the suit premises on 22nd April 2024 at about 11. 00 A.M after expiry of the proclamation notice.

41. According to the respondents, the 14 days stipulated in law had lapsed by the time the proclaimed goods were collected from the suit premises. It is alleged that the initial proclamation was issued on 8th February 2024 as per annexure “JON-2” but the tenant compromised the first Auctioneer.

42. The tenant is accused of breach of contract and of failure to demonstrate that he would suffer irreparable loss and damage.

43. Section 3(1) of the Distress for Rent Act, Cap 301, Laws of Kenya provides as follows: -“(1)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.”

44. We have already found that the tenant owed the landlord rent arrears which he admitted through his advocates letter marked as annexure MR4 and his affidavit of 18th April 2024 at paragraph 8. The respondents have explained that the tenant’s properties were carted away before the orders staying the distress were served upon them and after expiry of the 14 days provided under the Distress for Rent Act. We have no reason to disbelieve the explanation given by the respondents in that regard as the same is supported by the email dated 22nd April 2024 sent at 3. 41 P.M as per annexure “JON-1”.

45. It is therefore our finding that the tenant is not entitled to the reliefs sought in the application dated 23rd April 2024.

Issue (c) Who shall bear the costs of the applications?\ 46. As regards costs, the same are in the Tribunal’s discretion under Section 12(1)(k) of Cap. 301, but always follow the event unless for good reasons otherwise ordered. We shall award the costs of the two applications to the respondents.

DIVISION - C. Final Orders. 47. In view of the above analysis, the final orders which commend to us are; -a.The tenant’s applications dated 18th April 2024 and 23rd April 2024 are hereby dismissed with costs.b.The interim orders given herein in favour of the tenant are hereby discharged or set aside.c.The landlord is entitled to levy distress for the unpaid rent without paying further court fees as there was no need to seek this Tribunal’s leave to do so.d.The tenant’s reference dated 18th April 2024 is hereby settled in terms since it raises the same issues as his application of even date.e.The costs of the two applications and the reference assessed at Kshs 50,000/= are awarded to the respondents.f.There shall be leave to appeal and a stay of execution for Thirty (30) days from the date hereof.

It is so ordered.RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14TH DAY OF APRIL 2025HON. GAKUHI CHEGE(PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON. JOYCE AKINYI OSODO(MEMBER)