[2021] KEBPRT 94 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E207 OF 2021 (NAIROBI)

SAMUEL WANYOIKE IGECHA

T/A TOUCH-LINE BAR AND GRILL

PETER KAGAI THEURI...........................................TENANTS/RESPONDENTS

VERSUS

JAMES GITAU JOHN

PAUL NJOROGE NGUGI.......................................LANDLORDS/APPLICANTS

PRISCILLAH NYAKAIRU

TRANSFIELD AUCTIONEERS............................................. 2ND RESPONDENT

MORAN AUCTIONEERS........................................................3RD RESPONDENT

RULING

1. By an application dated 15th June 2021, the Tenants sought 4 reliefs. Prayer 1 and 2 were granted at the ex-parte stage and what falls for determination is prayers 2 and 4 thereof.

2. The Tenants are basically seeking for a temporary prohibitory order against the Landlords from levying distress, proclaiming, carting away and attaching their movable property and goods or auctioning the same. They further seek for injunction against harassment, intimidation or interference with their business plus costs of the application.

3. The tenants run a business known as Touchline Bar and Grill on L.R NO. 3543, Githurai, Nairobi which they rented from the three Landlords in 2015.

4. On 7th June 2021 and 9th June 2021, the landlord instructed auctioneers to levy distress for rent against the tenants without permission of the Tribunal. The auctioneers proceeded to proclaim the tenant’s property as instructed.

5. According to the tenant, the landlord was required to seek permission from the Tribunal and in absence of a certificate permitting the same, the distress is unprocedural, irregular void and unlawful.

6. Upon being served with the application, the landlord filed a counter-application dated 1/9/2021 seeking for an order to set aside and vacate the orders given on 16th June 2021.

7. They further seek to be allowed to levy distress in recovery of outstanding rent arrears against the tenant and to enter upon the business premises and take possession thereof.

8. It is further sought that the OCS, Kasarani Police Station do oversee enforcement of the orders. The application is supported by the affidavit of Paul Njoroge Ngugi sworn on 1st September 2021 and the grounds on the face of the application.

9. It is the landlords’ case that the tenant has persistently defaulted, refused, neglected and/or failed to pay rent since April 2020 which had accumulated to Kshs.1,282,000/- by the time of filing the application.

10. The tenant continues to occupy the premises despite nonpayment of rent and arrears thereby denying the landlords the benefit use and enjoyment of the premises.

11. As a result, the landlords contend that they are unable to maintain the building and to pay other outgoings to relevant authorities.

12. In the circumstances, the landlords contend that their only option is to levy distress to enable recovery of rent in order that they may in turn discharge their mandate as lessors.

13. The landlords accused the tenant of mischief and failure to disclose material facts when he obtained the ex-parte orders.

14. The landlord attaches a rent account statement showing how the sum of Kshs.1,283,000/- is made up as annexture ‘PN-1’.

15. I am required to determine the following issues:-

(a) Whether the tenant is entitled to the reliefs sought in the application dated 15/6/2021.

(b) Whether the landlords are entitled to the reliefs claimed in the application dated 1/9/2021.

(c) Who is liable to pay costs?.

16. An application for injunction must meet at least the first two principles espoused in the case of Giella – vs- Cassman Brown and Co. Ltd to wit:-

(i) An applicant must show a prima facie case with a probability of success.

(ii) An injunction will not normally be granted unless the applicant may otherwise suffer irreparable injury.

(iii) When the court is in doubt, it will decide the application on the balance of convenience.

17. The chief complaint by the tenant is that the landlords were proceeding to levy distress without permission of the Tribunal. There is no complaint that the amount claimed by the landlord is not owing by the tenant.

18. Section 3(1) of the Distress for Rent Act, Cap. 293, Laws of Kenya provides as follows:-

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

19. Section 12(1) of Cap. 301 gives the Tribunal power to permit the levy of distress for rent. I want to believe that it is on the basis of the said provision that the tenant has pegged his application.

20. However, it is my finding that it is not mandatory for a landlord to seek permission from the Tribunal to levy distress under section 3(1) of the distress for Rent Act. In this regard, I rely on the decision in the case of John Nthumbi Kamwithi – vs- Asha Akumu Juma(2018) eKLR at paragraph 31 wherein the court cited with approval the decision in Peter Nthenge – vs- Daniel Itumo & Another HCCC No. 1242 of 1974, Nairobi where it was held as follows:-

“ The right of landlord to distrain for arrears or rent arrears arises at common Law and need not be expressly reserved. It enables the landlord to secure the payment of rent by seizing goods and chattels found upon the premises in respect of which the rent or obligations are due. Formerly, the right to distress was a right of some importance to the landlord and often exercised, but it has now fallen into disuse”.

21. The court continued at paragraphs 33, 34 and 35 as follows:-

“33. It follows that the appellant had a right to levy distress for recovery of the rent owed. The issue arising is whether he was required to seek permission from the Business Tribunal. The provision relied on by the Respondent provides for the various powers of the Tribunal”.

“34. I have perused the Act but I find no provision to the effect that such permissions ought to be sought”.

“35. 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. If the tenant chooses he/she could file a reference to the tribunal for orders in objection of the distress”.

22. Guided by the foregoing superior courts decisions, it is my view that the application by the tenant is misconceived, bad in law and an abuse of court process as he does not dispute being indebted to the landlords.

23. In the premises, I find that the landlord did not require to obtain permission from this Tribunal before levying distress against the tenants for rent arrears owing. I believe the said application was made for abundance of caution in this matter.

24. The landlord is praying for an order of vacant possession against the tenant. No termination notice under section 4(2) of Cap. 301 has been exhibited by the landlord. As such, the tenancy cannot be terminated in absence of the requisite notice. That limb of the application therefore fails.

25. In conclusion therefore, the following orders commend to me:-

(a) The tenant’s application dated 15th June 2021 is hereby dismissed with costs.

(b) The landlord’s application dated 1st September 2021 is allowed in terms of prayers 2,3 and 5.

(c) The tenants’ reference dated 15th June 2021 being predicated upon the same complaint as their application is marked as dismissed.

(d) Costs of the two applications assessed at Kshs.25,000/- awarded to the landlord.

DATED, SIGNED AND DELIVERED THIS 10TH DAY OF DECEMBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Mburu for the Landlords

No appearance for the Tenants