https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5075

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC APPEAL NO. E162 OF 2024** **PRITI MASCARENHAS …………………………………........ 1ST APPELLANT** **HABITAT REALTORS INTERNATIONAL LTD ………...…. 2ND APPELLANT** **PYRAMID AUCTIONEERS …………………………………. 3RD APPELLANT** **-VERSUS-** **CHARLES GOKO WAITHAKA** **t/a ZEGOKO ENTERPRISES ……………………………......... RESPONDENT** **(Being an Appeal from the Ruling of P. May - Vice Chair, Business Premises Rent Tribunal on 28th October 2022, BPRT CASE NO. E649 OF 2022 NAIROBI)** **JUDGEMENT** 1. By a Memorandum of Appeal dated 25th November 2022, the Appellant appealed against the ruling of P. May delivered on 28th October 2022 in BPRT Case No. E649 of 2022, and set out six grounds of appeal. **BACKGROUND** 1. The 1st Appellant filed a Notice of Motion before the Tribunal dated 21st July 2022, seeking the following orders: 1. ***That this application be and is hereby certified as urgent and service be dispensed with at the first instance, and the same be heard ex parte.*** 2. ***That the Respondent/Landlord, their Agent and Pyramid Auctioneers be and are hereby restrained from levying distress, proclaiming and/or removing the Tenant's goods from the business premises pending hearing of this application and main suit.*** 3. ***That the Landlord and/or their servants and/or employees, Agents, Pyramid Auctioneers and/or any other Auctioneers be prohibited forthwith by this court from unlawfully intercepting/harassing, intimidating and/or evicting, closing, attaching or threatening/interfering/tampering, disposing by hand or in any manner whatsoever and/or howsoever with the Applicants quite occupation and lawful enjoyment of suit premises at L.R No. 209/6781 along Mugo Kibiru road Kilimani pending hearing and determination of this application.*** 4. ***That the Respondent/Landlord and their Agents be and are hereby ordered to produce statements of accounts*** 5. ***That O.C.S. Kilimani Police Station to assist in compliance with these orders.*** 6. ***That the cost of this case be provided for.*** 2. The Respondent's case, as set out in his supporting and replying affidavit, was that he was a protected tenant occupying the suit property, comprising Shops 1, 2 and 3, at a monthly rent of Kshs. 300,000/-. He asserted that the 1st Appellant had threatened to levy distress through auctioneers over the disputed rent arrears. He stated that he had only signed letters of offer, not lease agreements, regarding the premises. He further stated that he had paid legal fees and stamp duty totalling Kshs. 358,600/=, which he sought to be credited to his account. He also stated that he had paid rent deposits totalling Kshs. 555,000/= each time his lease was renewed. 3. The 2nd Appellant filed a replying affidavit dated 15th August 2022, in opposition to the application. It was stated that the tenant owed Kshs. 4,353,400/- in rental arrears as of August 2022. He explained that the monthly rent payable was Kshs. 345,000/-, not Kshs. 300,000/- as claimed. 4. Upon hearing the application, the Tribunal, in its ruling dated 28th October 2022, allowed the application in the following terms: 1. ***The tenant's application filed on 21st July, 2022, is allowed in terms of prayers 2 and 5.*** 2. ***The landlord shall from henceforth keep a rent book as mandated under the law.*** 3. ***The tenant to continue paying the agreed rent of Kshs. 345,000/- as when it falls due.*** 4. ***The amounts of Kshs 358,600/= and Kshs 555,000/= paid by the tenant as amounts for Stamp Duty and Subsequent deposits shall be credited to the rent account*** 5. ***The tenant is granted costs assessed at Kshs. 100,000/- to be deducted from the rent payable.*** 6. ***The reference to be fixed for hearing within 90 days. Parties to file compliance documents within 30days.*** 5. Aggrieved by the decision, the Appellants filed this appeal through a Memorandum of Appeal dated 25th November 2022 on the following grounds: * + 1. ***That the Vice-Chair of the Business Premises Rent Tribunal erred in both law and fact by failing to exercise her discretion judiciously by granting unconditional injunctive orders despite the fact that there existed sufficient factual and legal grounds mitigating in favour of not granting the said injunctive orders or if so granted, on conditions including securing of the evidently due and payable rent arrears running into millions of shillings.*** 2. ***That the Learned Vice - Chair erred in both law and fact by ordering that the sum of Kshs. 358,600/- and Kshs. 555,000/- respectively allegedly paid by the tenant for alleged stamp duty and "subsequently deposits" be credited to the rent account, despite the fact that:-*** 1. ***There was no evidence that the said amounts had been paid by the tenant to the landlord or any of the co-appellants in the first place or at all.*** 2. ***The mandatory order was made at an interlocutory stage without hearing the parties and/or without the tenant specifically proving when and how he had paid the said sum.*** 3. ***That the learned Vice-Chair erred in both law and fact in failing to exercise her discretion judiciously by granting a sum of Kshs. 100,000/- as costs for the said application and ordering that the same be deducted from the rent payable yet the said costs were excessive, unjustified and very punitive guided by the relevant scale and past precedents.*** 4. ***That the learned Vice-Chair erred in both law and fact in granting a blanket injunctive order and even ordering that the OCS Kilimani Police station do assist in the compliance of the said order(s) despite the fact that the tenant was in huge rent arrears but was nevertheless technically shielded from paying the said arrears while the 1st appellant as the landlord was prevented from levying distress for what was due upto date of the ruling or any arrears falling due thereafter even when the tenant was in default of rent.*** 5. ***That the Learned Vice-Chair erred in both law and fact in failing to address the issues before her either at all and/or judiciously, in a neutral and unbiased manner.*** 6. ***That the Learned Vice-Chair erred in arriving at the decision she did against the weight of the evidence and facts available.*** 1. The Appellants pray for the following orders: 1. ***That the ruling delivered on 28th October 2022 be set aside in its entirety, and in its place the application dated 21st July 2022 be dismissed with costs or in the alternative:*** 1. ***The mandatory order directing that the amounts of Kshs. 358,600/- and Kshs. 550,000/- respectively be credited to the Respondent's rent account, be set aside, and the tenant ordered to prove the alleged payment in the hearing of the main reference.*** 2. ***The orders granting the tenant Kshs. 100,000/- as costs for the application be set aside in its entirety and substituted with an order that costs do abide the outcome of the main reference.*** 3. ***The injunctive orders as granted as sought in prayer 2 and 5 of the application dated 21st July 2022 be vacated and in its place, the tenant be denied any injunctive orders or in the alternative be given a conditional injunctive order to pay the rent arrears or to deposit the said rent arrears (as the Honourable Court may direct) pending the hearing and final determination of the main reference in BPRT E649 of 2022.*** 4. ***That the costs of this appeal and indeed that of the application dated 21st July 2022 be granted to the Appellants.*** 2. The appeal was canvassed by way of written submissions. **THE APPELLANT’S SUBMISSIONS** 1. The Appellants filed their written submissions dated 28th June 2024. 2. On behalf of the Appellants, Counsel submitted that there is an existing landlord and tenant relationship between the 1st Appellant and Respondent, as the Respondent leased the premises known as L.R No. 209/6781 along Mugo Kibira Road in Kilimani, which belongs to the 1st Appellant. Counsel submitted that when the injunctive orders were granted, the Respondent was in substantial rent arrears, and at the time of levying distress, the arrears amounted to Kshs. 5,275,600/-, with the monthly rent being Kshs. 345,000.00/-, and that as of August 2022, the arrears had accrued to Kshs. 4,353,400.00/-, further accumulating to a total of Kshs. 6,750,000.00/-. 3. Counsel contended that the Respondent failed to demonstrate a prima facie case with a probability of success, as no evidence of payment of rent arrears was presented either before the Tribunal or in the application. Counsel further contended that the Respondent did not establish the element of substantial loss as outlined in **Giella v Cassman Brown & Co. Ltd (1973) EA 358**. Further reliance was placed on **Peter Kihika Ng'ang'a v Amos Kimeli Chamdala [2021] eKLR,** where the Court held that irreparable injury must be one that cannot be adequately compensated in damages. 4. Counsel submitted that the balance of convenience favours the 1st Appellant as landlord, who was left with a tenant occupying her premises without paying rent and restrained from levying distress, while suffering economic prejudice due to her inability to realise returns from her investment. It was submitted that the Vice-Chair erred in granting unconditional injunctive orders. Counsel contended that the orders should have been made conditional upon the Respondent securing or paying the outstanding rent arrears. 5. Counsel submitted that the Vice-Chair erred in ordering that the sums of Kshs. 358,600/- and Kshs. 555,000/-, allegedly paid by the Respondent for stamp duty and subsequent deposits, be credited to the rent account. It was submitted that no evidence was presented to show that these amounts had been paid to the landlord or any of the co-Appellants. Counsel contended that the mandatory order was issued at an interlocutory stage without giving the parties an opportunity to be heard and without the Respondent specifically proving when and how these sums were paid. Counsel argued that the Tribunal did not exercise its discretion properly nor apply the law correctly in arriving at its decision. 6. Counsel relied on the case of **Peter Kihika Ng'ang'a v Amos Kimeli Chamdala,** where it was held that a mandatory injunction should not be granted on an interlocutory application in the absence of special circumstances. 7. Counsel further submitted that a temporary injunction can only be issued for a period of fourteen days. Counsel contended that the Tribunal acted ultra vires by issuing orders beyond the statutory period without hearing the parties and without evidence from the Respondent establishing the facts relied upon. 8. Counsel submitted that the award of Kshs. 100,000/= as costs, along with the directive that the same be deducted from the rent payable was excessive, unjustified, and punitive. It was submitted that costs for proceedings before the Tribunal are governed by Schedule 8 of the Advocates (Remuneration) Order, 2014, specifically Item 7b, which states that, in a complaint where non-pecuniary relief is sought, costs shall not be less than Kshs. 2,940/- if undefended or unopposed, and a reasonable amount of not less than Kshs. 23,520/- if opposed. 9. Counsel submitted that the orders sought by the Respondent, being injunctive in nature, are non-pecuniary reliefs, attracting costs of at most Kshs. 23,520/-. Counsel argued that while the Court has discretion to increase that amount, an award of Kshs. 100,000/- was grossly disproportionate, and the Tribunal failed to lay any basis for departing from the prescribed scale. It was further submitted that the direction that the costs be deducted from the rent payable demonstrated open bias against the 1st Appellant, who continued to be economically prejudiced. 10. Counsel argued that the balance of convenience favours the 1st Appellant, who, as landlord, was left with a non-paying tenant occupying her premises. They contended that the harm caused by declining the injunction would be less than that caused by granting it, as the Tribunal had done. In conclusion, Counsel urged the Court to allow the appeal with costs. **THE RESPONDENT’S SUBMISSIONS** 1. The Respondent filed its submissions dated 27th February 2025. 2. On behalf of the Respondent, Counsel submitted on each of the four issues identified for determination. Regarding the injunction and police assistance, Counsel relied on the principles for granting an injunction established in **Giella v Cassman Brown & Co. Ltd** [1973] EA 358, as reiterated by the Court of Appeal in **Nguruman Limited v Jan Bonde Nielsen & 2 Others** **[2014] eKLR**. 3. Relying on **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR,** Counsel submitted that the tenant had established a prima facie case, as the Appellants did not deny that they authorised auctioneers to levy distress and attach the tenant's items over rent the tenant disputed, while the suit premises remained the subject of pending proceedings before the tribunal. 4. Counsel submitted that the Respondents had no basis to levy distress while this issue remained unresolved, and the Tenant had produced rent receipts before the Tribunal. To support this point, reliance was placed on **Peter Nthenge v Daniel Itumo & Another**, **HCCC No. 1242 of 1974 (Nairobi),** for the proposition that the remedy of distress has, in any event, largely fallen into disuse. 5. Regarding irreparable injury, Counsel submitted that the attachment of the Tenant's stock-in-trade threatened to collapse a business built over twenty years, with the consequent loss of goodwill and clientele, which cannot be remedied by damages. On the balance of convenience, Counsel relied on **Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR** to submit that the Tenant, having remained in occupation while paying rent, would suffer greater inconvenience than the Respondents, who had only sought to interfere with his occupation over alleged non-existent arrears. 6. Regarding the order directing that the sums of Kshs. 358,600/- and Kshs. 555,000/-, paid by the Tenant towards stamp duty and deposits, be credited to the rent account, Counsel submitted that the sums were paid repeatedly upon each renewal of the lease despite the fact that its terms remained unchanged, and that the Respondents had never furnished the Tenant with an executed and registered lease despite the repeated payments. It was submitted that the repeated collection of stamp duty and deposit amounted to unjust enrichment of the Appellants, which the Tribunal remedied by directing that the sums be applied towards future rent, a finding Counsel urged the Court to uphold. 7. On the assessment of costs at Kshs. 100,000/-, Counsel submitted that the award fell within the Tribunal's discretion under **Section 27** of the **Civil Procedure Act**. Relying on **Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another** **[2016] eKLR**, Counsel submitted that the Tribunal considered the conduct of the parties and the circumstances of the litigation in arriving at its assessment, and that the Appellants' reliance on the Advocates (Remuneration) Order, 2014 is misconceived, the Schedule relied upon prescribing only minimum, and not maximum, recoverable costs. 8. On costs of the appeal, Counsel submitted that costs follow the event, and urged the Court to find the appeal without merit, strike it out with costs to the Respondent. **ANALYSIS AND DETERMINATION** 1. This being a first Appeal, this Court has a duty to evaluate, assess and analyse the evidence on record and make its own decision. The principles guiding a first Appellate Court were discussed in the case of **Selle & Another v Associated Motor Boat Company and Others [1968] 1 EA 123,** where the Court of Appeal set out the duty of Appellate Courts as follows; ***“An appeal to this court from a trial court by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate itself and drive its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge finding of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression on the demeanour of a witness is inconsistent with the evidence in the case generally.”*** 1. Similarly, in the case of **Ephantus Mwangi & Another v Duncan Mwangi [1982-1988] 1 KAR 278,** the Court of Appeal held that; ***“A member of an appellate court is not bound to accept the learned Judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence or (b) if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”*** 1. Having considered the entire record and the rival submissions, the following issues arise for determination: * 1. *Whether the Tribunal erred in granting the injunctive orders;* 2. *Whether the Tribunal erred in ordering that the sums of Kshs. 358,600/- and Kshs. 555,000/-, paid by the Respondent as stamp duty and deposits, be credited to the rent account;* 3. *Whether the Tribunal erred in assessing costs at Kshs. 100,000/- and directing that the same be deducted from the rent payable;* 4. *Who should bear the costs of the appeal?* **WHETHER THE TRIBUNAL ERRED IN GRANTING INJUNCTIVE ORDERS** 1. The principles granting an injunction were established in **Giella v Cassman Brown & Co. Ltd [1973] EA 358** as follows: ***a) First, the Applicant must show a prima facie case with a probability of success.*** ***b) Secondly, an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable harm which would not be adequately compensated by an award of damages.*** ***c) Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.*** 1. In support of his application, the Respondent claimed that he has been the 1st Appellant's tenant occupying the suit shops since 2010 and had spent approximately Kshs. 8 million renovating two of the three shops. He also stated that he had been paying a monthly rent of Kshs. 300,000/-. He denied being in rental arrears and argued that the proclamation of his goods had been obtained through a fraudulently issued order naming the wrong parties and containing an incorrect description of the suit property. In this regard, he presented, among other documents, the 1st Appellant's letter dated 14th June 2022 instructing Pyramid Auctioneers to levy distress, copies of rent cheques covering the period from December 2021 to September 2022, and the order issued in CMCC Misc. No. E928 of 2022, a petty cash voucher evidencing the return of a deposit of Kshs. 100,000/-, a schedule of items he claimed were damaged during the attachment, and receipts proving renovation works. 2. The 2nd Appellant asserted that the Respondent had neither signed a There was no new lease after the previous one expired in 2019, nor were rent payments maintained. The current rent was Kshs. 345,000/-, not Kshs. 300,000/-, as claimed by the Respondent. A demand for payment had been made but remained unanswered before instructions were given to levy distress. It was acknowledged that some of the goods displayed had to be returned to the Respondent following his complaint to the police regarding the manner of execution. The 2nd Appellant relied on a rent statement covering June 2017 to August 2022, showing an outstanding balance of Kshs. 4,353,400/-, the demand letter of 9th May 2022, and the proclamation of movable property dated 14th June 2022. 1. It is well established that, in an application for an interlocutory injunction, the court or tribunal's role is limited to assessing whether the Applicant has demonstrated that such orders are necessary to maintain the status quo pending the hearing and determination of the dispute on its merits. A court or tribunal must exercise caution not to decide the substantive issues between the parties at the interlocutory stage. 2. In the matter at hand, the Tribunal found that the Respondent had established a prima facie case, based on his long occupation of the suit premises and the risk that any attempt to evict him pending the hearing would threaten his livelihood, causing irreparable harm if his claim ultimately succeeded. The material presented before this Court supported the Tribunal's finding of a prima facie case and the threat of irreparable harm. 3. The difficulty, however, does not lie in the grant of interlocutory relief itself but in what accompanied it. After allowing the application, the Tribunal proceeded to make findings regarding the merits of the dispute, specifically that the entire process of levying distress was unlawful, irregular, and that the landlord failed to maintain a rent book as required under Section 3(3) of Cap 301. It also ordered that the landlord maintain a rent book going forward, that the Respondent continue paying rent at Kshs. 345,000/-, that the sums of Kshs. 358,600/- and Kshs. 555,000/- be credited to the rent account, and that the costs of Kshs. 100,000/- be assessed and deducted from the rent payable. 1. This Court finds that these latter orders were final in nature and went beyond what was necessary to maintain the status quo pending the hearing of the Reference. The issue of the rent payable remains entirely in dispute between the parties. The sums claimed to have been paid as stamp duty, legal fees, and deposits were not proven by documentary evidence tested at a hearing, and neither party had been given the opportunity to cross-examine the other's documents. A finding that the levy of distress was, in its entirety, unlawful and irregular was, essentially, a determination of the very issues the Reference was filed to resolve. 2. This Court accordingly finds that the Learned Vice-Chairperson erred in extending the interlocutory orders beyond preserving the status quo, and in making final determinations on contested issues without a hearing on the merits. **WHETHER THE TRIBUNAL ERRED IN ORDERING THAT THE SUMS OF KSHS. 358,600/- AND KSHS. 555,000/-, PAID BY THE RESPONDENT AS STAMP DUTY AND DEPOSITS, BE CREDITED TO THE RENT ACCOUNT;** 1. For the reasons already stated, this Court finds that the order to credit these sums to the rent account was premature and in error. The existence, amount, and characterization of these payments should be determined at the hearing of the Reference, based on evidence tested by the parties, rather than being resolved at the interlocutory stage based on affidavit evidence alone. **WHETHER THE TRIBUNAL ERRED IN ASSESSING COSTS AT KSHS. 100,000/-** 1. As a matter of practice, costs are ordinarily assessed after the conclusion of a matter, not at an interlocutory stage before the substantive dispute has been heard and determined. This Court finds that the assessment and award of costs at this stage of the proceedings was, similarly, premature. 2. The upshot of the foregoing is that this appeal is merited and is allowed in part as follows: 1. ***The order of the Tribunal dated 28th October 2022 directing that the sums of Kshs. 358,600/- and Kshs. 555,000/- be credited to the rent account, and assessing costs of Kshs. 100,000/- to be deducted from rent payable, is hereby set aside;*** 2. ***The orders restraining the Appellants, their agents, and Pyramid Auctioneers from levying distress, proclaiming, or removing the Respondent's goods, and directing the O.C.S. Kilimani Police Station to assist in compliance therewith, shall remain in force, on an interim basis, pending the hearing and determination of the Reference on its merits;*** 3. ***The questions of the rent properly payable, the sums claimed as stamp duty and deposits, and the costs of the application dated 21st July 2022, shall be determined by the Tribunal upon the hearing of the Reference;*** 4. ***The Reference shall proceed for hearing on a priority basis; and*** 5. ***Each party shall bear its own costs of this appeal.*** **RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 31ST DAY OF JULY 2026.** **…………………………………….** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF**: Ms Wambua for the Appellant Vena– Court assistant