Ndwano Capital Limited v Mwenda Njagi Advocates & 2 others [2025] KEBPRT 227 (KLR)

Ndwano Capital Limited v Mwenda Njagi Advocates & 2 others (Tribunal Case 1242 of 2024) [2025] KEBPRT 227 (KLR) (8 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 227 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 1242 of 2024

CN Mugambi, Chair

April 8, 2025

Between

Ndwano Capital Limited

Applicant

and

Mwenda Njagi Advocates

1st Respondent

Jeremiah Kanyi Njine

2nd Respondent

Kelvin N Mwaura Kentrack Auctioneer

3rd Respondent

Ruling

1. The Tenant’s Application dated 12. 11. 2024 has sought an order that upon the hearing of the Application, the 3rd Respondent be restrained from seizing, advertising, authoring and scheduling an illegal sale of the distressed goods. The Tenant has also sought the assistance of the OCS, Muthaiga Police Station.

2. The Tenant has deponed in its supporting affidavit sworn by its director, Mr. Samuel Gichini Wanjiku that it operates a consultancy business in a premises located at Cianda Mall, Block A 3rd Floor and the Tenant has remitted all its rent to the 1st Respondent to whom the Applicant is a sub-Tenant.

3. The Tenant has further deponed that on 5. 11. 2024, the 2nd Respondent instructed the 3rd Respondent to levy distress for a debt owed to the 2nd Respondent by the 1st Respondent while the Applicant is not a party to the contract or the debt between the 1st and the 2nd Respondent.

4. The Tenant also depones that the goods proclaimed by the 3rd Respondent and earmarked for sale belongs to the Applicant and the Tenant is apprehensive that the said goods may be illegally sold.

5. The 2nd Respondent has filed a replying affidavit in which he has deponed that the 1st Respondent acted for him in Milimani Small Claims Court Case No 871 of 2023 wherein Judgment was entered in favour of the 2nd Respondent and the funds forwarded to the 1st Respondent who failed to remit the same to the 2nd Respondent.

6. The 2nd Respondent in an attempt to recover the decretal sum sued the 1st Respondent and obtained Judgment against the 1st Respondent and the 2nd Respondent in an attempt to execute the decree against the 1st Respondent, instructed the 3rd Respondent to recover the same. The 3rd Respondent in turn proclaimed the 1st Respondent’s goods on 5. 11. 2025.

7. The 2nd has deponed in his affidavit that the proclamation was legal and was done in the premises occupied by the 1st Respondent.

8. The 2nd Respondent has further contested the ownership of the proclaimed goods as he depones that the check list provided by the Tenant is not sufficient proof of ownership of the said goods.

Analysis and determination 9. The only issue that arises for determination in this Application is whether the Applicant is entitled to the orders sought in his Application.

10. The Complaint filed by the Tenant is in the following terms;-“The Complaint concerns the subtenant in that its properties may be irregularly and unlawfully attached in a distress for rent dispute between its landlord/tenant and a third party, a dispute to which Ndwano Capital Limited (a sub tenant of Mwenda Njago & Co. Advocates) is not a party to).”

11. The Tenant who claims to be a sub tenant of the 1st Respondent does not seem to have any claim against the 1st Respondent. Its claim is only against the 2nd and 3rd Respondents. The Tenant has not claimed nor has it brought any evidence that the 2nd Respondent is the Landlord of the suit premises. what comes out from the 2nd Respondent’s affidavit is that the 2nd Respondent was the successful party to a suit he had filed against the 1st Respondent and it is the decree in that suit that the 2nd Respondent is seeking to recover against the 1st Respondent. The 3rd Respondent is merely acting on the instructions of the 2nd Respondent in realizing the decretal sum in the suit between the 1st and the 2nd Respondent.

12. I do not think that there exists any Landlord/Tenant relationship between the Tenant and the 2nd Respondent or between the 2nd Respondent and the 1st Respondent. The Tribunal cannot therefore have any basis for interfering with the execution of the decree obtained against the 1st Respondent by the 2nd Respondent in Milimani Small Claims Court Case No E8868/2024.

13. It is my view that, if the Tenant herein claims to be entitled to or to have any legal or equitable interest in the property/goods proclaimed by the 3rd Respondent in execution of a valid decree, then the Tenant ought to have pursued his claim in the same case and the same court that passed the decree sought to be executed under the provisions of Order 22 Rule 51(1) wherein it is provided;“Any person claiming to be entitled to or to have a legal or equitable interest in the whole of or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of sale of such property give notice in writing to the court and to all the parties and to the decree holder of his objection to the attachment of such property.”

14. The procedure under order 22 Rule 52 allows the aggrieved party to establish his claim to attached goods which otherwise do not belong to the judgment debtor and I therefore find the procedure adopted by the Tenant in this matter to be fatally defective.

15. Consequently, I do not find any merits in the Complaint by the Tenant and the Application filed therewith and the same are dismissed with costs to the 2nd Respondent.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF APRIL, 2025. HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Chege for the 2nd Respondent and Mr. Mwangi holding brief for Mr. Mwangi holding brief for Mr. Kuria for the Applicant/tenant