[2023] KEBPRT 1312 (KLR)
The Tribunal found that while the tenant admitted to being in rent arrears and thus was not entitled to injunctive relief, the landlord's unilateral seizure of the tenant's tools of trade without following the proper legal process for distress for rent was unlawful. The Tribunal reiterated its earlier orders that...
Source-derived case information.
- Citation
- [2023] KEBPRT 1312 (KLR)
- Parties
- Applicant: James Ouma Ndar; Respondent: Daniel Waruga
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E260 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- Application partly allowed; orders reiterated and clarified.
- Judges
- CN Mugambi
- Legal Topics
- Landlord Tenant Disputes, Distress for Rent, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Ouma Ndar
Applicant
Daniel Waruga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the landlord was justified in closing the suit premises and seizing the tenant's tools of trade.
- 2 Whether the tenant is entitled to injunctive relief restraining the landlord from interfering with his occupation of the premises.
- 3 Whether the landlord followed due process in seeking to recover rent arrears.
Ratio Decidendi
The Tribunal found that while the tenant admitted to being in rent arrears and thus was not entitled to injunctive relief, the landlord's unilateral seizure of the tenant's tools of trade without following the proper legal process for distress for rent was unlawful. The Tribunal reiterated its earlier orders that the landlord must unconditionally release the tenant's tools of trade. The tenant was ordered to pay all outstanding rent arrears within thirty days, failing which the landlord would be at liberty to levy distress for rent in accordance with the law. Each party was ordered to bear its own costs.
Court Disposition
Application partly allowed; orders reiterated and clarified.
Orders
- The landlord is to release the tenant’s tools of trade unconditionally.
- The tenant will pay to the landlord all outstanding rent arrears within thirty (30) days, failing which the landlord will be at liberty to levy distress for rent.
Full Case Text
Judgment text and source record
22 paragraphs
Ndar v Waruga (Tribunal Case E260 of 2023) [2023] KEBPRT 1312 (KLR) (9 June 2023) (Ruling)
Neutral citation: [2023] KEBPRT 1312 (KLR)
Republic of Kenya
In the Business Premises Rent Tribunal
Tribunal Case E260 of 2023
CN Mugambi, Chair
June 9, 2023
Between
James Ouma Ndar
Tenant
and
Daniel Waruga
Landlord
Ruling
1. The Tenants application dated 9. 3.2023 seeks an order that the Respondent be ordered to open the suit premises, and allow the tenant access therein failing which the tenant is to break in with the assistance of the OCS, Mwiki police station. The tenant has also sought orders restraining the landlord/Respondent from in any manner whatsoever interfering with the tenant’s quiet occupation and the lawful enjoyment of the suit premises at Githurai 45. Police assistance has also been sought.
2. The Applicant has deponed in his affidavit that he pays a monthly rent of Kshs. 9,000/= for the suit premises owned by the landlord.
3. The tenant has also deponed that the Respondent has closed the suit premises while the tenant only owed rent for the month of February and that further, the landlord has threatened to evict the tenant.
4. On 17. 3.2023, the Tribunal issued orders directing the landlord to open the suit premises failing which the tenant would be allowed to break into the same with the assistance of the police.
5. On 20. 4.2023, the landlord confirmed to court that he would release the tenants tools and open the suit premises. The tenant was then ordered to pay the rent he admitted of Kshs. 31,000/= before 30. 5.2023. On the said date, the tenant appeared in court in the absence of the landlord and informed the court that he had not paid to the landlord the sum of Kshs. 31,000/= as ordered.
6. Clearly, the tenant has admitted to being in rent arrears, he cannot therefore be said to be deserving orders of injunction. on the other hand, the landlord’s seizure of the tenant’s tools of trade and the failure to release them to the tenant is clearly illegal as it does not seem to have followed any clear procedure for distress for rent.
7. Consequently, I will reiterate the orders made on 20. 4.2023 and order that;-a.The landlord is to release the tenant’s tools of trade unconditionally.b.The tenant will pay to the landlord all outstanding rent arrears failing which the landlord will be at liberty to levy distress for rent at the expiry of thirty (30) days from the date hereof.c.Each party will bear its own costs.
RULING DATED, SIGNED AND DELIVERED THIS 9TH DAY OF JUNE 2023. HON. CYPRIAN MUGAMBICHAIRMAN9. 6.2023