[2025] KEBPRT 273 (KLR)

Odhiambo Joseph Asere t/a Asmit Pharmaceuticals v Dr. Berlinda Nga’nga t/a Frangipani Holding Ltd (Tribunal Case E1391 of 2024) [2025] KEBPRT 273 (KLR) (Civ) (7 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 273 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E1391 of 2024

N Wahome, Chair & Joyce Murigi, Member

May 7, 2025

Between

Dr. Odhiambo Joseph Asere t/a Asmit Pharmaceuticals

Applicant

and

Dr. Berlinda Nga’nga t/a Frangipani Holding Ltd

Respondent

Ruling

1. These proceedings were originated by the reference dated 17th December 2024 which is anchored on Section 12(4) of the Landlord and Tenant (Shops, Hotels and catering Establishments) Act (Cap. 301) hereinafter referred to as “the Act”.The grievance by the Tenant is that the landlord had:-i.Served him with distress for rent despite paying rent for the months including December, 2024. ii.I have been paying rent diligently and my business is now under threat.iii.That this is harassment through auctioneers.iv.I stand to be auctioned despite complying with the terms of the lease agreement.

2. The reference was accompanied by a notice of motion application of the even date which in summary sought for the following orders:-a.That the landlord and the auctioneers be restrained from distressing for rent, interfering and/or denying the Tenant quiet possession of the demised premises.b.That orders sought if granted be enforced by the OCS Embakasi Police Station and for costs of the application.

3. The Tenant further filed the further Affidavit sworn on the 2/4/2025 and the submissions of the even date. The evidence of the Tenant is that:-i.He was dutifully paying his rents on the demised premises.ii.The purported rent in arrears was a civil debt for rents that had earlier on been waived and then reclaimed by the landlord.iii.As at 2/4/2025, he owed the landlord this Kshs.97,000/- in rent arrears.iv.The arrears in rent the subject of the distress for rent was a civil debt and therefore not available for distress.v.The distress for rent was a disguise to force the Applicant out of the demised premises.i.On her part, the landlady filed the replying Affidavit sworn on the 18/2/2025 and the submissions dated 15/4/2025. It is the evidence of the landlady that:-ii.The Tenant is a serial rent defaulter who owed Kshs.207,000/- as at February, 2025. iii.The Tenant had by an agreement dated 16/10/2024 committed to settle the rent arrears of Kshs.240,000/- by monthly installments of Kshs.50,000/- per month together with the monthly rent at Kshs.70,000/-.iv.He only paid the rent at Kshs.70,000/- for the months of November and December, 2024 but did not settle the arrears as agreed.v.In default, she instructed M/S Mbusera auctioneers to move and recover the rent arrears then at Kshs.273,000/-.vi.She had the right to levy distress in recovery of the rent arrears and the Tenant did not deserve the equitable remedies sought.

4. We have perused the parties pleadings, the evidence annexed thereof, the submissions and case laws cited and are of the view that the issues that arise for determination are the following:-i.Whether the Tenant’s application has merit.ii.Who should bear the costs of these proceedings.

5. Before we delve into the identified issues herein above, it is our view that a determination of the application dated 17/12/2025 will also resolve the reference of the even date with finality.

6. Turning to the Tenant’s application, it is plain from the record and by admission by the Tenant that as at 2/4/2025 he was in arrears of rent at Kshs.97,000/-. Indeed, the Tenant did not in anyway contradict the landlady’s rental accounts as presented.

7. We also observe that in the Agreement dated 16/10/2024, the Tenant also admitted owing the Tenant Kshs.240,000/- and unequivocally stated that the same was rent arrears. The assertions that same was for a previously waived rent and therefore a civil debt does not hold.

8. It is our view that the orders sought by the Tenant are equitable reliefs which can only benefit one who has met their cardinal obligations within a relationship like the present one. In this case the Tenant owed Kshs. 240,000/- by October 2024 Kshs.207,000/- by February 2025 and Kshs.97,000/- as admitted by the Tenant as at 2/4/2024.

9. This is not a tenant who has been faithfully meeting his cardinal obligations and we doubt that he deserves the orders sought nor those already being enjoyed by him. In the case of Samuel Kipkorir Ngeno & Another –v Local Authorities Pension Trust (Registered Trustees) and Another [2013] eKLR where Justice H.P.G Waweru held that:-“The temporary injunction sought in the present application is an equitable remedy at the court’s discretion. He who comes to equity must come with clean hands. A tenant who is in huge arrears of rent is underserving of the court’s discretion. The court cannot be the refuge of a tenant who fails to meet his principal obligation of paying rent as and when it becomes due”.

10. From the highlighted history of default in rent payment by the Tenant, we do not find any merit in the application dated 17/12/2024 and proceed to dismiss the same. These orders shall also apply to the reference of the even date.

11. The landlady through her advocates M/S Muri Mwaniki Thige and Kageni advocates by a letter dated 10/12/2024 instructed M/S Mbusera auctioneers to levy distress in recovery of rent arrears then claimed at Kshs.273,000/-. What arises from the Landlady’s actions is whether such a move was legitimate on this we need to look at Section 3(1) of the Distress for rent Act. The same provides that:-“Subject to the provisions of this Act, any person having any 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”.

12. Further reliance is put on the case of John Thumbi Kamwithi v Asha Akumu Juma [2018] eKLR where F. Muchemi Judge held that:-“I find that the Applicant had no obligation to seek permission from the Tribunal to levy distress. The fact that the tenancy is controlled does not mean that the landlord applies to the Tribunal to levy distress. Distress is a right the landlord is entitled to for recovery of rent”.

13. We therefore find no wrong doing on the part of the landlord when she sought to levy distress in recovery of rent arrears which is admitted by the Tenant. She was therefore operating well within the parameters provided by the law and cannot be faulted.

14. On costs, we in compliance with Section 12(1) (k) of the Act award the same to the landlady who is the successful party in these proceedings.

15. In the final analysis, the orders that commend to us are the following:-i.That the reference and application both dated 17/12/2024 are dismissed.ii.That the Tenant shall settle all the rents in arrears including the rent for May, 2025 by the 31/5/2025 and indefault levy of distress to proceed.iii.The Tenant shall pay costs to the landlady assessed at Kshs.25,000/- and to the auctioneers assessed at Kshs.15,000/-.Those are the orders of these court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MAY, 2025. HON. NDEGWA WAHOME MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL. BPRT.Ruling delivered in the presence of Tenant/Applicant and Mr. Owino for the Landlord/Respondent.HON. NDEGWA WAHOME MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL. BPRT.