https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/356

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT NYERI** **CIVIL CASE NO. E016 OF 2026** **MT. KENYA WHOLESALERS LIMITED………………………………………... ….......…PLAINTIFF** **VERSUS** **ZACHARY KINGORI MWANGI…………………....…….……………………………….. DEFENDANT** **JUDGMENT** 1. The Plaintiff avers that on 15th August 2020 he entered into a lease agreement with the Defendant regarding Room No. 412 of Mbaki House on L.R No. NYERI MUNICIPALITY BLOCK III/184. The Defendant was to pay a monthly rent of Kshs. 6,000/=. The Plaintiff claims that the Defendant has not been paying rent and has rent arrears of Kshs. 35,724/=. 2. The Plaintiff laments that the Defendant is still in occupation of the said premises and is causing her financial loss and damage. For these reasons, the Plaintiff prays for judgment against the Defendant as follows: 1. The Defendant to pay the Plaintiff the rent arrears totally to Kshs. 35,724/=. 2. Vacant possession of room 412 in Mbaki house No. L.R No. NYERI MUNICIPALITY BLOCK III/184 within 14 days and in default, the Defendant to be evicted from the premises at his own cost. 3. The Defendant to pay interest on a), b) and c) above. 4. Costs of this suit plus interest. 3. Despite, being served with summons to enter an appearance the Defendant, neither entered an appearance nor filed a defence. Consequently, an interlocutory judgment was entered on 20th May 2026 and the matter proceeded by way of formal proof. **Hearing** 4. When the matter came up for hearing, the Plaintiff testified in support of her case. She adopted her statement dated 2nd February 2026 which was a reiteration of her Plaint. She then proceeded to produce the documents in her list of documents dated 2nd February 2026. **The Determination** 5. I have read and appreciated the submissions by the Plaintiff dated 23rd July 2026. The issues that arise for determination are as follows: 1. Whether this suit was premature and the Plaintiff failed to exhaust other remedies available to her. 2. If a) is answered in the negative, whether the Plaintiff is owed rent arrears of Kshs. 35,724/= by the Defendant. 3. **Whether this suit was premature and the Plaintiff failed to exhaust other remedies available to her.** 6. The Plaintiff claims that she and the Defendant entered into a lease agreement on 15th August 2020. The Plaintiff was leasing room no. 412 at Mbaki House which is situated on L.R No. NYERI MUNICIPALITY BLOCK III/184. The Defendant was renting out the room for a monthly rent of Kshs. 6,000/=. The Plaintiff produced a copy of the lease agreement. I have keenly read through the said agreement. In my view, the relationship between the Plaintiff and the Defendant was that of a landlord-tenant. The Plaintiff was the landlord and the Defendant was the tenant. The lease agreement provided the obligations of both parties. The rent payable was Kshs. 6,000/= per month but the rent would be increased after every two years. The tenancy period was 5 years 3months from 15th August 2020. In light of the tenancy period, the same exceeding five years means that the tenancy would not be termed as a controlled tenancy and fall within the meaning of Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. Be that as it may, the issue that arises is whether the Plaintiff would have explored another remedy before filing the suit herein. 7. In my view, this being any issue of recovery of rent arrears, the Plaintiff ought to have distressed for the unpaid rent. This would involve the Plaintiff seeking the services of an auctioneer, after notifying the Defendant of the default, and proclaiming the Defendant’s goods. In **Omondi v Kassam & another (Civil Appeal E018 of 2024) [2024] KEHC 10703 (KLR),** the Court held: **“Thus, where a tenant fails to pay rent altogether, the landlord has the right to levy distress for unpaid rent. This remedy is best exercised by engaging the services of an auctioneer. Distress for rent by the landlord involves seizing of the tenant’s goods within the premises for which rent is owed without the need to commence litigation. See Distress for rent is governed by the**[***Distress for Rent Act***](https://kenyalaw.org/akn/ke/act/1937/1)**, which prohibits landlords from levying distress for rent at night and on Sundays. The law also prohibits landlords from seizing tools of trade, perishable goods, goods belonging to third parties, clothes and beddings and pets.”(emphasis added)** In **Royal Gardens Hospital v Ebrahim Omenyi Ambwere & another [2018] eKLR,** the Court resolved that a court order is not necessary before distress for rent where the tenancy is not controlled. The Court stated: **“11.The principal issue before me is under whose authority distress should be carried out. The**[***Distress for Rent Act***](https://kenyalaw.org/akn/ke/act/1937/1)**and the common law do not require that the same be founded on a court order. Indeed, according to the Halsbury’s Laws of England, Third Edition Vol. 12 page 115, leave of court to distrain must be obtained before the right to distrain can be exercised only where the tenancy is controlled and where the tenant is a serviceman not serving under regular engagement or dependents of such as service man. All what is required is that the same be carried out by a certified bailiff. Certification of bailiffs, according to section 18, is by the court, but that should not be read to mean the bailiff acts upon the court having decreed the levy of distress. All what the bailiff, in Kenyan lingo that would a court broker or auctioneer, would need are instructions or a warrant from the landlord to carry out the exercise. The warrant or instructions is necessary as it gives the bailiff the right which accrues to a landlord, or the person employing or instructing him, to enter the premises for the purpose of levying distress for rent. Where entry is resisted there may be need to obtain court orders to access the premises and to seize the chattels. It should be emphasized that court action should only be necessary in such circumstances. The only other requirement is that the bailiff serves a notice on tenant of the amounts for which distress is being levied, and the notice should include a computation of authorized fees, charges and expenses. At common law no such notice was necessary as the tenant was presumed to know what was in arrear regarding the property he occupied.”** 8. In this case, the Plaintiff prematurely filed this suit without exploring the remedy of levying distress for the unpaid rent noting that the Plaintiff did not require a court order before commencing the process of distressing for the unpaid rent. 9. Having found that the suit herein was filed prematurely, I will not delve into the other issue. The suit is hereby struck out with no orders as to costs as the Defendant did not defend the suit. **Dated, Signed, and Delivered at Nyeri this 29th day of July 2026.** **M.M GITUMA** **SENIOR RESIDENT MAGISTRATE** In the presence of: …………………………..………………Plaintiff …………………………………………..Defendant …………………………………….Court Assistant