[2025] KEBPRT 285 (KLR)

Widrups Group Limited v Forest Road Villas Limited (Tribunal Case E121 of 2025) [2025] KEBPRT 285 (KLR) (Civ) (9 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 285 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E121 of 2025

Gakuhi Chege, Chair & J Osodo, Member

May 9, 2025

Between

Widrups Group Limited

Applicant

and

Forest Road Villas Limited

Respondent

Ruling

A. Dispute Background 1. The applicant moved this Tribunal through a motion dated 27th January 2025 seeking in material part for stay of attachment, sale, completion of sale and any transfer of assorted properties collected from the suit premises being Apartment/office No. 103, Forest Road Villas.

2. The applicant is further seeking for an order that Felina Commercial Auctioneers does release and return its assorted properties collected from the suit premises aforesaid which form integral tools of trade pending hearing of the application.

3. The application is predicated upon the grounds set out on the face thereof and the supporting affidavit sworn on 24th January 2025 by James Musungu Rapando who is a director of the applicant.

4. According to the applicant, on 21st May 2024 and 11th July 2024, the respondent sent it two demand letters for outstanding rent. The said letters are attached as annexure JMR1.

5. On 24th January 2025, the aforesaid Auctioneers raided the suit premises without issuing any notice. It is the applicant’s case that the respondent was mistaken and misguided in issuing instructions to the said Auctioneers to collect and auction its property on the basis of the letter dated 21st May 2024. It is further deposed that the property collected by the Auctioneers form an integral part of the applicant’s tools of trade.

6. The auctioneer issued the applicant with a notification of sale marked as annexure JMR2 dated 24th January 2025 giving it 7 days. According to the applicant, the auction is unlawful. As a result, the applicant has come to this Tribunal to seek for protection against the intended sale fearing to suffer irreparable, substantial loss and damage.

7. Interim orders were given on 31st January 2025 pending hearing inter-partes on 11th February 2025.

8. The application is opposed through the replying affidavit of Peter Maina Mwangi sworn on 7th February 2025 wherein he deposes that he is an Auctioneer practicing in the firm of Felina Commercial Auctioneers as per the license marked FMM1.

9. The Auctioneer confirms having been instructed by the respondent to distress for rent against the applicant through a letter dated 11th June 2024 marked as annexure PMM2.

10. On 12th June 202, a proclamation marked PMM3 was duly served upon the tenant by the Auctioneer giving it 14 days. Before the lapse of 14 days, the Auctioneer was instructed by the respondent’s advocate to withhold the distress momentarily on the basis that the applicant had made promises to comply with the demands and notices served upon it.

11. Instructions to proceed with the distress were issued on 22nd January 2025 which was seven (7) months after expiry of the proclamation notice through a letter marked PMM4. Pursuant to the said instructions, the Auctioneer proceeded to suit premises and distrained the applicant’s properties. The applicant was consequently issued with a notification of sale.

12. According to the Auctioneer, all the attached properties listed in the notification of sale are distrainable contrary to the applicant’s contention that they are not.

13. The application is further opposed through the replying affidavit of Paul Mutemi, the Property Manager of the respondent sworn on 7th February 2025 which basically corroborates the averments made by the Auctioneer in his replying affidavit aforesaid.

14. According to the Property Manager, the applicant was on 21st May 2024 served with a demand letter marked as annexure FRV1 for rent arrears amounting to Kshs 148,600/= failing which the respondent would exercise their right of forfeiture under Section 73 of the Land Act, 2012.

15. The applicant failed to comply with the demand within Seven (7) days and thereafter a Thirty (30) days’ notice was issued pursuant to Section 73 and 75 of the Land Act in regard to the respondent’s right of forfeiture on account of breach of the lease agreement by failing to pay rent in terms of annexure FRV2.

16. It is further deposed that the applicant was served with an eviction notice dated 31st May 2024 marked as annexure FRV3 after failing to rectify the breach in terms of the demand letter dated 21st May 2024.

17. According to the Property Manager, the applicant owed Kshs 271,400/= as at 22nd January 2025 in terms of annexure FRV6. The tenant fell into further arrears in the month of February 2025 to leave the total arrears at Kshs 340,000/= as at 6th February 2025 as per the account statement marked as annexure FRV8.

18. Through an email marked as annexure FRV9, the applicant acknowledged the rent arrears and made false promises to pay. All communications between the parties herein was being done through email.

19. The applicant is accused of issuing bouncing cheques in respect of the rent arrears as evidenced by annexure FRV12 and as such, the applicant has come to this court with unclean hands.

20. The applicant filed a further affidavit sworn on 25th February 2025 wherein he deposes that he has never been served with an eviction notice by the respondent. The applicant accuses the respondent of manipulating and forging the date on the notice. The notice served on the applicant was issued on 11th July 2024 and not 11th June 2024.

21. According to the applicant, the distrained properties are his tools of trade which comprises office furniture, photocopy machine and computers as a result of which his business has been paralyzed.

22. The parties were directed to cavass the application by way of written submissions. The applicant’s and the respondent’s submissions are both dated 26th March 2025. We have read the submissions and taken the same into consideration in arriving at our decision on the issues framed herein.

B. Issues for determination 23. The following issues arise for determination; -a.Whether the eviction notice dated 31st May 2024 is valid and enforceable against the applicant.b.Whether the distress carried out by the respondent is legal.c.Whether the applicant is entitled to the reliefs sought in the reference dated 24th January 2025 and the application dated 27th January 2025. d.Who shall bear the costs of the application?

Issue (a) Whether the eviction notice dated 31st May 2024 is valid and enforceable against the applicant. 24. The respondent herein issued the tenant with an eviction notice dated 31st May 2024 marked as annexure FRV3 after failing to rectify breach of the lease agreement in terms of the demand letter dated 21st May 2024. It commanded the applicant to move out of the suit premises by 7th June 2024 failing which it would be forcefully evicted. The lease agreement is dated 1st July 2021 and is for a period of 5 years.

25. The notice is predicated upon nonpayment by the applicant of a sum of Kshs 148,600/= in rent arrears for the suit premises.

26. There is no dispute that the tenancy herein is controlled within the meaning and interpretation of Section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments Act) Cap 301, Laws of Kenya.

27. Section 4(2) of the said statute provides as follows; -“(2)A landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form.”

28. In the case of Manaver N Alibhai T/a Diani Boutique – v- South Coast Fitness & Sports Centre LimitedCivil Appeal No. 203 of 1994, it was held as follows: -“The Act lays down clearly in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not terminate or be terminated and no term or condition in or right or service enjoyed by the tenant of any such tenancy shall be altered otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The notice must also specify the ground upon which termination is sought. The prescribed notice in form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice.” (emphasis added).

29. We have perused the notice issued by the respondent and noted that the same is not in the prescribed form and does not comply with Section 4 (4) & (5) of Cap 301, Laws of Kenya which is couched in the following terms: -“(4)No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party, as shall be specified therein:Provided that—(i)where notice is given of the termination of a controlled tenancy, the date of termination shall not be earlier than the earliest date on which, but for the provisions of this Act, the tenancy would have, or could have been, terminated;(ii)where the terms and conditions of a controlled tenancy provide for a period of notice exceeding two months, that period shall be substituted for the said period of two months after the receipt of the tenancy notice;(iii)the parties to the tenancy may agree in writing to any lesser period of notice.(5)A tenancy notice shall not be effective for any of the purposes of this Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration or reassessment concerned and requires the receiving party to notify the requesting party in writing, within one month after the date of receipt of the notice, whether or not he agrees to comply with the notice.”

30. Besides not being in the prescribed form, the notice given to the respondent is for only seven (7) days and does not grant the tenant an opportunity to object thereto as required in the foregoing legal provision. It is therefore invalid and of no legal effect.

31. We note that the respondent sought to rely on Sections 73 & 74 of the Land Act, 2012 but the same are inapplicable to the circumstances of this case. The said provisions are in the following terms: -“73. (1)Subject to the provisions of section 76 and to any provisions to the contrary in the lease, the lessor shall have the right to forfeit the lease if the lessee –(a)commits any breach of, or omits to perform, any agreement or condition on his part expressed or implied in the lease; or(b)is adjudicated bankrupt; or(c)being a company, goes into liquidation.(2)The right of forfeiture may be –(a)exercised, where neither the lessee nor any person claiming through or under him is in occupation of the land, by entering upon and remaining in possession of the land; or(b)enforced by action in the court.(3)The acceptance by the lessor of any rent after the service of a notice of forfeiture under section 75 does not operate as a waiver of the lessor’s right of forfeiture unless the lessor has by any other positive act shown an intention to treat the lease as subsisting.Effect of forfeiture on subleases74. The forfeiture of a lease determines every sublease and every other interest appearing in the register relating to that lease, but–(a)where the forfeiture is set aside by the court on the grounds that it was procured by the lessor in fraud of the sublessee; or(b)where the court grants relief against the forfeiture under section 76, every such sublease and other interest shall be deemed not to have determined.”

32. We agree with the applicant’s Counsel’s submission that the above provisions do not apply in a situation where the tenant is still in occupation of a premises comprising the tenancy. In any event the said provisions cannot override Section 4(1) of Cap 301 which is in the following terms: -“4. Termination of, and alteration of terms and conditions in, controlledtenancy(1)Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with the following provisions of this Act.” (emphasis added)

Issue (b) b) Whether the distress carried out by the respondent is legal. 33. The applicant moved this Tribunal through a motion dated 27th January 2025 seeking in material part for stay of attachment, sale, completion of sale and any transfer of assorted properties collected from the suit premises being Apartment/office No. 103, Forest Road Villas.

34. The applicant is further seeking for an order that Felina Commercial Auctioneers does release and return its assorted properties collected from the suit premises aforesaid which form integral tools of trade pending hearing of the application.

35. The application is predicated upon the grounds set out on the face thereof and the supporting affidavit of James Musungu Rapando who is a director of the applicant sworn on 24th January 2025.

36. According to the applicant, on 21st May 2024 and 11th July 2024, the respondent sent it two demand letters for outstanding rent. The said letters are attached as annexure JMR1.

37. On 24th January 2025, the aforesaid Auctioneers raided the suit premises without issuing any notice. It is the applicant’s case that the respondent was mistaken and misguided in issuing instructions to the said Auctioneers to collect and auction its property on the basis of the letter dated 21st May 2024. The property collected by the Auctioneers form an integral part of the applicant’s tools of trade.

38. The auctioneer issued the applicant with a notification of sale marked as annexure JMR2 dated 24th January 2025 giving it 7 days. According to the applicant, the auction is unlawful. As a result, the applicant has come to this Tribunal to seek for protection against the intended sale fearing irreparable, substantial loss and damage.

39. Interim orders were given on 31st January 2025 pending hearing inter-partes on 11th February 2025.

40. The application is opposed through the replying affidavit of Peter Maina Mwangi sworn on 7th February 2025 wherein he deposes that he is an Auctioneer practicing in the firm of Felina Commercial Auctioneers as per the license marked FMM1.

41. The Auctioneer confirms having been instructed by the respondent to distress for rent against the applicant through a letter dated 11th June 2024 marked as annexure PMM2.

42. On 12th June 202, a proclamation marked PMM3 was duly served upon the tenant by the Auctioneer giving it 14 days. Before the lapse of the 14 days, the Auctioneer was instructed by the respondent’s advocate to withhold the distress momentarily on the basis that the applicant had made promises to comply with the demands and notices served upon it.

43. Instructions to proceed with the distress were issued on 22nd January 2025 which was seven (7) months after expiry of the proclamation notice through a letter marked PMM4. Pursuant to the said instructions, the Auctioneer proceeded to the suit premises and distrained the applicant’s properties. The applicant was consequently issued with a notification of sale.

44. According to the Auctioneer, all the attached properties listed in the notification of sale are distrainable as opposed to the applicant’s contention to the contrary.

45. The application is further opposed through the replying affidavit of Paul Mutemi, the Property Manager of the respondent sworn on 7th February 2025 which basically corroborates the averments made by the Auctioneer in his replying affidavit aforesaid.

46. According to the Property Manager, the applicant was on 21st May 2024 served with a demand marked as annexure FRV1 for rent arrears amounting to Kshs 148,600/= failing which the respondent would exercise their right of forfeiture under Section 73 of the Land Act, 2012.

47. The applicant failed to comply with the demand within Seven (7) days and thereafter a Thirty (30) days’ notice was issued pursuant to Section 73 and 75 of the Land Act with regard to the respondent’s right to forfeiture on account of breach of the lease agreement marked as annexure FRV2 on account of failure to pay rent.

48. It is further deposed that the applicant was served with an eviction notice dated 31st May 2024 marked as annexure FRV3 after failing to rectify breach in terms of the demand letter dated 21st May 2024.

49. According to the Property Manager, the applicant owed Kshs 271,400/= as at 22nd January 2025 in terms of annexure FRV6. The tenant fell into further arrears in the month of February 2025 leaving the total arrears at Kshs 340,000/= as at 6th February 2025 as per the account statement marked annexure FRV8.

50. Through an email marked annexure FRV9, the applicant acknowledged the rent arrears and made false promises to pay. All communications between the parties herein was through email.

51. The applicant is accused of issuing bouncing cheques in respect of the rent arrears as evidenced by annexure FRV12 and as such, the applicant is accused of coming to this court with unclean hands.

52. The applicant filed a further affidavit sworn on 25th February 2025 wherein he deposes that he has never been served with an eviction notice by the respondent. The applicant accuses the respondent of manipulating and forging the date on the notice. The notice served on the applicant was issued on 11th July 2024 and not 11th June 2024.

53. According to the applicant, the distrained properties are his tools of trade which comprises of office furniture, photocopy machine and computers as a result of which his business has been paralyzed.

54. Section 3(1) of the Distress for Rent Act, Cap 293 provides as follows: -“3. Right of distress(1)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.”

55. Although the applicant claims not to be indebted to the respondent, the later provided rent account statements showing the applicant’s indebtedness. The applicant has not provided any evidence to demonstrate that it has paid the amount claimed by the respondent against it.

56. Sections 106, 107 and 109 of the Evidence Act, Cap 80, provide as follows:-“107. Burden of proof(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. Incidence of burdenThe burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109. Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

57. The applicant being the party alleging to have paid all the rent demanded by the respondent had the legal burden to prove so. In absence of evidence to that effect, we find and hold that it has failed to discharge the said burden of proof. As such, the landlord was entitled to levy distress against the applicant’s properties.

58. We have noted the argument by Counsel for the applicant that the respondent was required to seek permission of this Tribunal to levy distress under Section 12(1)(h) of Cap 301. The said provision has been variously interpreted by Superior Courts and held to be merely permissive and not mandatory. In any event, the distress subject matter hereof was levied pursuant to the provisions of the Distress for Rent Act, Cap 293 which does not make it necessary to seek court’s leave before levying distress.

59. In so finding, we are fortified by the decision in John Nthumbi Kamwithi v Asha Akumu Juma[2018] eKLR, wherein the Superior Court at paragraph 35 held as follows: -“35. I find that the appellant 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.” (See also Royal Gardens Hospital v Ebrahim Omenyi Ambware & Another[2018] eKLR)

60. The applicant further argues that the distrained properties are his tools of trade which comprise office furniture, photocopy machine and computers as a result of which his business has been paralyzed. It is our view that the said properties are distrainable as holding otherwise would make everything in use of a tenant for purposes of conducting business including stock in trade non-distrainable. We do not think that this was the intention of Section 15 of the Distress for Rent Act.

61. In so holding, we are guided by the decision in the case of Invesco Assurance Co. Ltd v Kinyanjui Njuguna & Co. Advocates & Another [2020] eKLR wherein it was held at paragraphs 29-31 as follows: -“29. In view of the above provisions of the law as well as the cited authority, whereas the computers, works stations, office desks, book shelves, filing cabinets, plastic chairs may be useful for facilitating the smooth operations of the applicant’s business, the same are not tools of trade for insurance business as the applicants can still use portable equipment like their phones and ipads to process insurance policies and claims.30. I also associate myself with the finding in the case of Invesco Assurance Co. Ltd v Kinyanjui Njuguna & Co. Advocates & another [2020] eKLR where Justice Odunga rendered himself thus;“41. The said decision was cited with approval in the case of Master Fabricators Limited v Patrick Omondi Ndonga [2014] eKLR.42. I associate myself with the said holding as expressing the correct law as regards the intention of the said section. In the premises the applicant herein cannot successfully invoke in its aid the said provision in order to bar the 1st Respondent from realizing the fruits of its judgement. It is my view that the said section must be restrictively interpreted so as to aid only those whose means of livelihood and sustenance are in jeopardy of being ruined. It ought not to be invoked to simply protect those whose profits and businesses are in jeopardy. The exemption, in my view, is not meant for the protection of a particular industry but is only meant to protect a particular person’s ability to earn livelihood.”31. I have no hesitation in finding that the applicants are not afforded protection under section 44(1) of the Civil Procedure Act and hence the proclaimed items are amenable for sale for purposes of realizing the decretal sums due. In this regard, issues (a) and (b) are answered in the negative.”

62. By parity of reasoning, we find and hold that the distrained goods herein are not protected from distress under the Distress for Rent Act. We also find that the notices issued by the respondent to the applicant pursuant to the impugned distress under the said statute are valid. It therefore follows that the distress was lawful.

Issue (c) Whether the applicant is entitled to the reliefs sought in the reference and dated 24th January 2025 and the application dated 27th January 2025 63. Having found that the eviction notice served upon the applicant is invalid, we find and hold that the applicant is entitled under Section 12(4) of Cap 301 to an order restraining the respondent from evicting it from the suit premises without adhering to the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya.

64. Further, having found that the distress for rent carried out by the respondent against the applicant is lawful, we are not persuaded to grant the prayers sought in the application dated 27th January 2025 and therefore proceed to dismiss the same. Consequently, the interim orders given on 31st January 2025 are hereby discharged/set aside.

Issue(d) Who shall bear the costs of the suit? 65. Under Section 12(1)(k) of Cap. 301, Laws of Kenya, costs of every suit before this Tribunal are in its discretion but always follow the event unless for good reasons otherwise ordered. The applicant’s reference is partially successful and the respondent’s eviction notice has been declared invalid. At the same time, the distress for rent levied by the respondent has been upheld and the applicant’s application dated 27th January 2025 dismissed, we shall order each party to bear its own costs of the suit.

C. Orders 66. In conclusion, the following final orders commend to us; -a.The respondent’s eviction notice dated 31st May 2024 is hereby declared invalid and of no legal effect.b.The applicant’s reference dated 24th January 2025 partially succeeds and the respondent is restrained from evicting the applicant from the suit premises described as Apartment/office No. 103, Forest Road Villas without adhering to the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya.c.The tenant’s application dated 27th January 2025 is hereby dismissed and the interim orders given on 27th January 2025 are hereby discharged/set aside.d.Each party shall bear its own costs of the suit.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9th DAY OF MAY 2025. HON GAKUHI CHEGEPANEL CHAIRPERSON.BUSINESS PREMISES RENT TRIBUNALHON. JOYCE A. OSODOPANEL MEMBERIn the presence of: -Odindo for the RespondentMiss Ng’ong’a for the Applicant