[2025] KEBPRT 31 (KLR)

Mary Salome Nthenya Sesi t/a Sesi & Associates v Diocese of Marsabit Registered Trustees & 2 others (Tribunal Case E908 of 2024) [2025] KEBPRT 31 (KLR) (15 January 2025) (Ruling)

Neutral citation: [2025] KEBPRT 31 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E908 of 2024

CN Mugambi, Chair

January 15, 2025

Between

Mary Salome Nthenya Sesi t/a Sesi & Associates

Claimant

and

Diocese of Marsabit Registered Trustees

1st Respondent

Ebony Estates Limited

2nd Respondent

Moran Auctioneers

3rd Respondent

Ruling

1. The Tenant’s notice of motion dated 15. 8.2024 seeks orders of injunction restraining the Respondents from selling by public auction or in any manner disposing of the Applicant’s office equipment seized from the Applicant’s premises pending the hearing and determination of the suit.

2. The Tenant has also sought an order that in the event that her goods have been sold by the 3rd Respondent pursuant to an illegal distress, then the 3rd Respondent should be ordered to pay the Tenant the value of the seized equipment at the current market rates. The Tenant has also sought police assistance in the enforcement of the orders sought.

The Tenant’s depositions 3. The Tenant’s affidavit in support of the Application may be summarized as follows;-a.That the Tenant pays the monthly rent of Kshs. 39,888. 92/= and the Tenant further paid a two months’ rent deposit at the time he took over the suit premises.b.That the Tenant lastly paid rent on 13. 6.2024 and therefore she has no rent arrears.c.That the Landlord cannot distress for rent when it has the Tenant’s rent deposit.d.That the 3rd Respondent seized the Tenant’s office equipment in a distress the Tenant deems to be malicious.e.That the seized computers have vital client information.f.That the Tribunal has the powers to issue the orders sought by the Tenant.

The Respondent’s deposition 4. The Replying affidavit sworn by M/S Percy Kibe may be summarized as follows;-a.That the 3rd Respondent lawfully proclaimed the Applicant’s items and upon the expiry of the proclamation period, carted away the proclaimed goods.b.That the proclaimed goods were duly advertised for sale as per the annexed advertisement.c.That the Applicant has always been informed of her rent arrears.d.That the Tenant’s items were taken out of the premises and sold.e.That the premises has been repainted and is ready to be let out to another Tenant and therefore the Tribunal has no jurisdiction to hear and determine this matter and the Tenant should therefore seek redress in another forum.

Analysis and determination 5. The only issue that arises for determination in this Application is whether the Tenant is entitled to the orders sought in her Application.

6. The Tenant challenges the actions of the Respondents in levying distress for rent on the ground that the Landlord is holding her two months’ deposit and that she does not owe any rent to the Landlord. It is not correct to state that the Tenant can be said not to owe rent merely because the Landlord holds a rent deposit. The rent deposit is more or less like caution money that the Landlord holds to take care of certain contingencies at/on the termination of a tenancy for example the repairing of the suit premises and the repair of parts of the premises damaged by a Tenant. A Tenant can therefore be in rent arrears even as the Landlord holds his deposit on rent.

7. Is it true that the Tenant did not owe rent in arrears? The rent statement of account annexed to the Landlord’s affidavit clearly shows that the Tenant was in rent arrears amounting to Kshs. 123,186/= as at 30. 7.2024. The Tenant has not challenged that statement in any way. Consequently, the Landlord was entitled to exercise its rights to levy distress for rent under the provisions of Section 3 of Cap 296, the Distress for Rent Act, Laws of Kenya.

8. I have seen from the record that the Tenant’s equipment was advertised for sale and actually sold. The 3rd Respondent duly communicated the sale to the 2nd Respondent by their letter dated 30. 7.2024. In this regard, I note that the Applicant approached the Tribunal on 21. 8.2024 by her Application dated 15. 8.2024 long after the sale had taken place. There was therefore no sale to be stopped as it had already taken place.

9. The Tenant has also prayed that in the event her goods had been sold, then the 3rd Respondent ought to be ordered to pay her at the current market rates. I do not think the Tenant would be in a position to make this demand considering that she was in rent arrears when the Landlord exercised its rights to levy distress and remained in arrears even at the time of sale. The Tenant has not pointed out to any illegality on the part of the Respondents or to any wrongful exercise of the Landlord’s rights to levy distress. The Tenant is therefore not entitled to any compensation from the 3rd Respondent or indeed from any of the Respondents.

10. The Landlord has challenged the jurisdiction of the Tribunal on the basis of the fact that the Tenant’s equipment has already been sold and the suit premises have already been repainted in readiness to offer the same to another Tenant, nothing could be further from the truth. The jurisdiction of the Tribunal cannot be ousted by the repainting of the premises and/or the sale of the Tenant’s equipment. The levy of distress for rent is not to be equated to or to be confused to a lawful termination of a tenancy which can only be undertaken pursuant to the provisions of Section 4 of Cap 301. The Tribunal therefore retains the jurisdiction to hear and determine this matter.

11. Finally, and in view of the above findings, I do not find any merits in the Tenant’s Application dated 15. 8.2024 and the same is dismissed with costs to the Respondents.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF JANUARY, 2025HON. CYPRIAN MUGAMBI - CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Siguma for the Respondents and in the absence of the Applicant and Counsel