[2021] KEBPRT 381 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 299 OF 2021 (NAIROBI)

CONSOLIDATED WITH E003 OF 2021 (NAIROBI)

MOHAMED ABDI MOHAMED T/A

TRIM & SHAPE..................................................................TENANT

VERSUS

KHAIRUN NISSA MOHAMED YUSUF...................LANDLORD

GEOFFREY KANG’ETHE T/A

KANG’ETHE ENTERPRISES..............................AUCTIONEER

RULING

The Tenants’ notice of motion application dated 25th March 2021 makes the following prayers;

1. Spent.

2. Spent

3. Spent

4. That pending the hearing and determination of the suit herein, this honourable court be pleased to issue an order of temporary injunction restraining the 1st and 2nd Respondents jointly and severally whether by themselves and/or through their servants, agents and/or anybody claiming under them and/or anybody whatsoever from attaching and/or selling by way of public auction or private treaty or any other way the Tenant’s/Applicant’s tools of trade listed in the 2nd Respondent’s proclamation notice dated 15th March 2021.

5. Costs.

The grounds upon which the affidavit is based and the affidavit in support thereof may be summarized as follows;

1. The Tenant/Applicant has leased the Landlord’s premises at an agreed monthly rent of Kshs 50,000/-.

2. That the Tenant has accumulated rent arrears due to the covid – 19 pandemic.

3. That the Tenant has made efforts to clear the arrears.

4. That the Landlady has failed to credit all payments hence creating a false state of arrears.

5. That the 2nd Respondent on instructions of the 1st Respondent has illegally proclaimed the Applicant’s goods purporting to recover legal fees.

6. That the Landlady/Respondent has failed to issue the Applicant with official receipts for rent paid.

7. That the Applicant intends to pay the proper arrears once his business picks up.

The application is opposed. The Respondents have filed a replying affidavit through one Kamran Mohamed Noorani whose contents I proceed to summarize as follows;

1. That the Tenant has acknowledged and admitted being in rent arrears.

2. That from September 2020 to May 2021, the Tenant has rent arrears amounting to Kshs 320,000/-.

3. That the Tenant has been irregular in the payment of rent and occasionally deposits the same in the Landlady’s account without informing her.

4. That the Tenant has not tendered evidence to prove he has paid the rent arrears being demanded.

5. That the claim that proclamation of the Tenant’s tools of trade is illegal has no legal basis.

6. That costs incidental to the levy of distress are payable by the Tenant.

7. That the Tenant having admitted to owing rent, he is not entitled to an equitable remedy.

8. That should the Tribunal allows the application, the Tenant be ordered to clear all outstanding rent.

The parties herein were ordered to file and exchange their respective written submissions. As at the time of writing this ruling, only the counsel for the Landlady/1st Respondent had filed his submissions. I summarize the same as follows:

1. That the Tenant challenges the distress for rent on the basis that the proclamation contains tools of trade in actual possession of the Tenant.

2. That the Tenant’s application being for injunctive relief, it must satisfy the test laid down in Giela Vs Casman Brown [1973] EA 358.

3. That the levy of distress is lawful unless it is proved that the same has no basis. In this case, the Tenant has admitted to be in rent arrears.

4. The current rent arrears amount to Kshs 320,000/-.

5. The Tenant has not shown any evidence that he has paid rent arrears and in any case, he is a persistent defaulter.

6. That on the strength of the authority of MSA HCC No. 724 of 1995 Ebrahim Normohamed Vs Esmail Abdulahi Tajbhai & Others, the payment of rent is a key consideration in the establishment of a prima facie case.

7. That the goods proclaimed are not exempt from levy of distress, see section 16 (1) (g) of the Distress for Rent Act.

8. That any injuries that may be occasioned by the levy of distress can be compensated by way of damages.

9. That the balance of convenience tilts in favour of denying the Tenant’s application.

That being the summary of the parties respective cases, the following are the issues that, in my view arise for consideration and determination;

1. Whether the Landlord’s/Respondents action of levying distress/proclaiming the Tenant’s/Applicant’s tools of trade is illegal.

2. Whether the Tenant/Applicant is entitled to the prayers sought in his application.

On Issue No. 1

The Tenant/Applicant at paragraph 10 of his affidavit states that on 15th March 2021, the 1st Respondent instructed the 2nd Respondent to levy distress against his business. At paragraph 6 of the supporting affidavit, the Applicant avers that during the covid – 19 pandemic “some” rent arrears were undoubtedly accumulated due to factors beyond his control. The Applicant further contends that the Applicant has failed to issue him with payment receipts creating a false state of arrears. I note that throughout the pleadings, the Applicant has not disclosed how much he has paid to the Landlord, neither does he disclose the rent arrears owing, only contending himself with the statement that “some rent arrears were undoubtedly accrued”.

The Landlord on his part has particularized the rent arrears under paragraph 3 of the replying affidavit. The sum stated therein to be owing is Kshs 320,00/-. The Tenant has not disputed this stated figure whereas section 3(3) of Cap 301 obligates the Landlord to keep a rent book in the prescribed form, I do not think this removes the burden from the Applicant herein to indicate in a particular manner and provide details of the payment of the rent he alleges to have paid.

In these circumstances, I am only left to go with the unchallenged statement on rent arrears provided by the Landlord.

The right to distress for rent is provided for under section 3(1) of the Distress for Rent Act Cap 293 of the Laws of Kenya which is in the following terms;

(3) “Subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrears 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.”

The only prequalification to levy distress is therefore “rent or rent service in arrears and due”. In the instant case, the Tenant has admitted being in arrears of rent. Though the Tenant has not disclosed how much rent is owing, the Landlord has clearly indicated that the rent was only since September 2020 to May 2021 when the Landlord’s replying affidavit was filed.

The Tenant has further contended that the proclamation of his tools of trade was illegal for the reason that tools of trade are exempt from attachment.

Section 16(1)(g) of Cap 293 exempts tools of trade in the following terms;

16(1) The following goods and chattels shall be exempt from distress for rent.

(g) Wearing apparel and bedding of the persons whose goods and chattels are being distrained upon and the tools and implements of his trade to the total value of one hundred shillings.

The Tenant’s tools of trade proclaimed as per his affidavit are; barber chairs, LG 55 inch (TV), blower, towel warmers, shaving machines, sofa sets CCTV camera, kids chair, sink chair and steaming machine among others. Though no value has been ascribed to these tools of trade, it is more than obvious that their total value cannot be one hundred shillings.

The Tenant’s other complaint is that the 2nd Respondent has also attempted to recover advocates’ fees in the same exercise. I do not think that the Advocates fees are the reason that the Landlord seeks to levy distress, No, it’s the rent arrears. But even then, I do not find the basis upon which the 2nd Respondent is seeking to recover legal fees against the Applicant on behalf of counsel. The same having not been taxed or assessed as being due from the Applicant to the Counsel (N.A Ali & Co Advocates).

The Applicant has a right to challenge the process adopted to arrive at the legal fees charged upon him.

In conclusion, I do find that the levy for distress herein is legal and proper. I also do find that the purported recovery of Kshs 48,000/- from the Applicant being advocates; fees is irregular. The distress for rent will proceed without taking into account the advocates’ fees. I also do find that the proclaimed tools of trade are not exempt from execution as clearly indicated elsewhere on this ruling.

On Issue No. 2

Having found that the distress for rent is lawful, regular and proper. I do find that the Tenant has not satisfied the conditions for the grant of injunctive relief as sought in his application.

The Tenant’s application dated 25th March 2021 is dismissed with costs.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

Ruling dated and delivered virtually by Hon Cyprian Mugambi Nguthari this 21stday of July, 2021 in the presence of Mr Hassanfor theLandlordand in the absence of Gikunye Mugo & Rienye Advocatesfor theTenant/Applicant.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL