Wanyama v Kuria & 2 others [2025] KEBPRT 303 (KLR)

Wanyama v Kuria & 2 others (Tribunal Case E072 of 2024) [2025] KEBPRT 303 (KLR) (21 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 303 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E072 of 2024

N Wahome, Chair & Joyce Murigi, Member

May 21, 2025

Between

Gabriel Oduori Wanyama

Applicant

and

Patrick Njiru Kuria

1st Respondent

Great Mwanzo Properties

2nd Respondent

Icon Auctioneers

3rd Respondent

Ruling

1. This Ruling is on the Tenant’s Application dated 23/12/2024. The application is anchored in Section 12(4) and 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301) herein after “ the Act’’. The Application prayed for restraining orders against the Landlord from interfering with its quiet possession and from levying distress in recovery of rent arrears pending the hearing and determination of this application and eventually the reference herein dated 20/12/2024.

2. In the reference, the Tenant complained that:-i.On or about 10/12/2024 the Landlord/Respondent through his agent Great Mwanzo Properties served the Tenant/Applicant with a Landlord’s notice to terminate or alter terms of tenancy on the grounds of inability to pay rent amounting to Kshs.800,000/-.ii.That thereafter on or about 14/12/2024 the Landlord/Respondent instructed the 2nd Respondent who served the Tenant/applicant with a proclamation of attachable/repossession/distraint of movable property for the collection of rent arrears amounting to Kshs.6,150,000/-.iii.The notices issued by the Landlord/Respondent to the Tenant/Applicant are contradictory and exorbitant to the detriment of the Tenant/applicant leading to uncertainties.The Tenant/Applicant therefore requests the Tribunal to investigate the matter and determine the issues involved”.

3. The case for the Tenant is that:-i.There are uncertainties on the amounts owed to the Landlord.Whether it is Kshs.6,150,000/- or Kshs.800,000/-, or even Kshs.200,000/-.ii.The rent arrears account should be reconciled before the termination or levy of distress are allowed.iii.The items intended to be levied and auctioned formed the tools of trade of the Tenant.iv.The Tenant was a hospital with 100 bed capacity and that at the time of this suit, had 40 patient bed occupation and also out-patient services.v.The landlord had unlawfully locked up the premises on the 5/12/2024 with in patients inside the premises and the same was only opened on the 6/12/2024 with the intervention of the area OCS.vi.It had been paying rent even after the orders of this court (see Tenant/Applicants rent receipts dated 14/4/2025).

4. On their part, the Respondents case was that:-i.The Tenant was a serial rent defaulter who owed Kshs.6,950,000/- at the time of their evidence in court and was unfairly, enjoying the interim orders herein.ii.The rent arrears had run all the way from the year 2021 (Annextures D0A-3 and D0A-4).iii.The Tenant had by an agreement dated 19/11/2024 committed to settle all the rents in arrears but he did not but instead stopped a cheque that was meant to settle the same (Annexture D0A-5).iv.With the huge rent arrears, the Landlord was entitled to terminate the Tenancy and also levy distress in recovery of the rents in arrears.v.The Tenant had not in anyway rebutted the contents of their Replying Affidavit.

5. We have perused the parties pleadings, evidence by way of documents and the submissions on record and are of the view that the issues for determination are the following:-i.Whether the Tenant’s application has merit.ii.Whether the landlords notice of termination is lawful.iii.Whether the Landlord is entitled to levy distress in recovery of alleged rent in arrears, andiv.Who should bear the costs of these proceedings:,

6. The Tenant do seek for orders to restrain the landlord from interfering with its quiet possession of the demised premises and not in anyway levy distress in recovery of rents in arrears. The application seems to have been triggered by a series of actions by the landlord.

7. On the 5/12/2024, the Landlord arbitrarily locked up the demised premises without the authority of the court. This averment has not been rebutted in any way by the landlord. The premises from the evidence on record were only re-opened on the 6/12/2024 at the intervention of the OCS Wanguru Police Station.

8. Immediately thereafter and in particular on the 10/12/2024, the landlord issued the Tenant with a notice to terminate the Tenancy and which was to take effect on the 1/3/2025. The grounds on which the notice was founded were that:-“The Tenant had accumulated rent dues of Kshs.200,000/- and inability to pay rent on time as agreed”.

9. The notice was followed shortly by a letter dated 13/12/2024 by M/S Solomon Mugo and Co. Advocates on behalf of the Landlord. It authorized the 3rd Respondent M/S Icon Auctioneers to levy distress against the Tenant for rent arrears at Kshs.6,950,000/-. This was barely 3 days after the notice of termination which had claimed the rent in arrears to be Kshs.200,000/-.

10. The instructions by M/S Solomon Mugo and Co. Advocates were acted upon by M/S Icon Auctioneers on the same date of 13/12/2024. The rent said to be in arrears in the proclamation notice was Kshs.6,150,000/-.

11. We also observe that in the Landlord’s annexture marked DOA-5, the rent that was said to be in arrears was Kshs.500,000/-. Therefore without the presence of a rent card as required under Section 3(3) only viva voce evidence may be able to ascertain whether there are any rents in arrears and the amount for that matter.

12. The Section provides that:-“The Landlord of a controlled tenancy shall keep a rent book in the prescribed form of which he shall provide a copy for the Tenant and in which shall be maintained a record, authenticated in the prescribed manner, of the particulars of the parties to the Tenancy and the premises comprised therein, and the details of all payments of rent and of all repairs carried out to the premises”.

13. In light of the above, we do invoke our powers under Section 12(1) and (4) of the Act and from the evidence on record make an order that status quo on the demised premises shall be maintained pending the hearing and determination of the reference herein.

14. We however also appreciate the commitment by the Tenant to settle the rent arrears for the months of October and November 2024, only Kshs.950,000/- as evidenced by the Tenants rent receipts by the document dated 14/4/2025. A simple account would show that the rent payable between October, 2024 and May, 2025 which is a period of 8 months at Kshs.300,000/- per month would total to Kshs.2,400,000/-. There is therefore no dispute that the Tenant is running in arrears at Kshs.1,450,000/- from the perusal of the parties documents on record. We would therefore order that the same be settled in the next 30 days of the date hereof and in default levy of distress to issue at the Tenant’s expense.

15. On whether the landlords notice of termination is lawful, we would wish to refer to the cited ground of termination which is that:-“The Tenant had accumulated rent dues of Kshs.200,000/- and inability to pay rent on time as agreed”.

16. That ground cannot sustain a notice of termination in view of the mandatory provisions of Section 7(1)(b) which provides that to terminate a tenancy:-“That the Tenant has defaulted in paying rent for a period of two months after such rent has become due or payable or has persistently delayed in paying rent which has become due or payable”.

17. The monthly rent for the demised premises being Kshs.300,000/-, then the amount of arrears stated by the Landlord as the ground for termination cannot suffice. The Landlord needed to clearly indicate that the Tenant was in rent arrears of at lease 2 months which is equal to Kshs.600,000/-. We would therefore declare the notice of termination of tenancy as unlawful and dismiss the same as being of no legal effect.

18. On whether the landlord was entitled to levy distress. We are in doubt in view of the contradicting figures issued by the Landlord as the rent in arrears at different times. This is a case where the parties require to take a rental account and build a consensus on the rent arrears. If they do not agree, then this court to hear the parties and deliver a judgement. It is only after such due diligence that levy of distress for the alleged rent arrears accrued before October 2024 can be put to effect through Section 3(1) of the distress for rent Act.

19. We are therefore of the view that in purporting to execute the levy of distress, the landlord should first have confirmed the actual rent in arrears. This does not seem to have been done. We would therefore put on hold any levy of distress on the amounts before October, 2024 but allow the same as above in case of default.

20. On costs, we are of the view that the same should abide the outcome of the reference herein.

21. In conclusion, the orders that commend to us are the following:-a.That the Application dated 23/12/2024 is allowed in terms that the Tenant shall be allowed complete quiet possession of the demised premises on Plot No. 7 of Paleah Building on Plot No. A92 Wanguru pending the hearing and determination of the reference dated 20/12/2024. b.That the Tenant is to pay the rent in arrears for between the months of October, 2024 and May, 2025 at Kshs.1,450,000/- in 30 days of the date hereof and in default levy of distress to issue in recovery thereof at its expense.c.That the parties shall take a rental account of all the rents in arrears for the duration before October 2024 and in the event of disagreement, this court shall take evidence and render a judgement on the same.d.The costs of these proceedings so far shall abide the outcome of the reference.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF MAY, 2025. HON. NDEGWA WAHOME, MBS, - PANEL CHAIRPERSON, MEMBER,HON. JOYCE MURIGI, - MEMBER,Ruling delivered in the presence of Mr. Mwangi for the Respondents and in the absence of Tenant/Applicant.HON. NDEGWA WAHOME, MBS, - PANEL CHAIRPERSON, MEMBER,HON. JOYCE MURIGI, - MEMBER,