Case ID:180338

Jairus Muendo & another v Kathumo Holdings Ltd & another [2021] eKLR

Case Metadata

Case Number:

Tribunal Case 199 of 2021

Parties:

Jairus Muendo & Francis Mulwa t/a Twelve Brothers v Kathumo Holdings Ltd & Big Step Enterprises Auctioneers

Date Delivered:

30 Jul 2021

Case Class:

Civil

Court:

Business Premises Rent Tribunal

Case Action:

Ruling

Judge(s):

HON A. MUMA VICE CHAIR

Citation:

Jairus Muendo & another v Kathumo Holdings Ltd & another [2021] eKLR

Advocates:

Mwindi for the Landlord

Kimathi for the Tenant.

Court Division:

Tribunal

Parties Profile:

Individual/Private Body/Association v Individual/Private Body/Association

County:

Nairobi

Advocates:

Mwindi for the Landlord

Kimathi for the Tenant.

History Advocates:

Both Parties Represented

Case Outcome:

Application dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 199 OF 2021

JAIRUS MUENDO & FRANCIS MULWA

T/A TWELVE BROTHERS...................................................................TENANTS/APPLICANTS

VERSUS

KATHUMO HOLDINGS LTD .................................................LANDLORD/1

ST

RESPONDENT

BIG STEP ENTERPRISES AUCTIONEERS..................AUCTIONEERS/2

ND

RESPONDENT

RULING

PARTIES AND THEIR REPRESENTATIVES

1. The Applicants herein are the Tenants occupying the premises on Plot No. 71D, Kalundu Market within Kitui Municipality

(hereinafter referred to as the ‘Suit Premises’)

, within the Republic of Kenya.

2. The Applicants are represented by the Firm of Kimanthi & Associates

info@kimanthi.com

3. The 1

st

Respondent is the Landlord of the Suit Premises.

4. The 2

nd

Respondent is a Firm of Auctioneers appointed by the 1

st

Respondent.

5. Both the 1

st

and 2

nd

Respondents are represented by the Firm of J.M. Muinde & Company Advocates.

Josephmuinde24@gmail.com

DISPUTE BACKGROUND

6. Vide a Notice of Motion Application dated

26

th

February 2021

and Reference of even date, the Applicants herein approached this Tribunal in pursuit of certain orders. However, after carefully perusing the Notice of Motion, I find that the same does not disclose any orders capable of being granted by this Tribunal. I will therefore proceed to determine the matter on the premise of the Reference by the Applicants which seeks the intervention of this Tribunal to interrogate the legality/lawfulness or otherwise of attachment of the Applicants’ goods and threat of eviction from the Suit Premises.

THE APPLICANTS CASE

7. The said Reference by the Applicants dated

26

th

February 2021

is supported by key grounds being that Applicants’ rights have been violated by the Landlords/ Respondents’ act of illegal attachment of the Applicants’ goods and threat of eviction from the Suit Premises on

4

th

February 2021

.

8. The Applicants have sworn an undated Supporting affidavit in support of their case. The said Affidavit give the background, context and procedural history of the dispute in respect of the Suit Premises and proceed to provide the evidentiary support to the grounds above stated. They swore that the present suit is a matter whose gravity is undeniable as it touches on the Bill of rights relevant to the Applicants.

9. They further, aver that the 1

st

Respondent by the illegal attachment of their goods and threat of eviction has subjected the Applicants’ business into agony and confusion thereby throwing the Applicants and their workers into an economic quandary. It is their position that this Tribunal is obligated to stop the illegal attachment of their goods and threat of eviction from the Suit Premises by the Respondents.

THE RESPONDENTS’ CASE

10. The 1

st

Respondent herein,

Kathumo Holdings Limited

filed a Replying Affidavit sworn by its Director,

Charles Mulinge

on

16

th

March 2021,

asserting that the sometime in

2019

, the Parties herein executed a Lease Agreement whose terms the Applicants have breached by

inter alia

, failing to pay rent as agreed between the Parties, subletting the premises to third parties and construction of permanent structures on the Suit Premises contrary to the terms of the alleged Lease Agreement.

11. The 1

st

Respondent further averred that the Applicants failed in their tenancy obligations by habitually accumulating arrears to the tune of

Kshs. 400,000.00

and that due to the outstanding amounts, it was untenable to continue having the Applicants occupy the Suit Premises.

12. Further, it was the 1

st

Respondent’s averment that sometime in

February 2020

, it wrote to the Applicants drawing their attention to the various breaches of the alleged Lease Agreement and issued them with a termination notice as was provided therein.

13. The 1

st

Respondent further averred that by a letter dated

11

th

January 2021

they instructed the 2

nd

Respondent to levy distress for rent on the Suit Premises. Surprisingly, the 2

nd

Respondents found other individuals running businesses on the Suit Premises, instead of the Applicants. Further, that by a letter dated

17

th

February 2021

the Applicants did not deny having committed serious breaches of the alleged Lease Agreement and instead pleaded to be given more time to pay the rent arrears after improvement of the business following the outbreak of Covid -19 pandemic.

SUBMISSIONS

14. The Application proceeded for hearing before this Tribunal and was canvassed by way of written submissions. Applicants submission are dated the

28

th

of May 2021

and Respondents submissions are dated the

10

th

May 2021

notable filed 18 days before the applicants. I have considered both and because they contain mainly factual details I see no need to restate the same again.

ANALYSIS AND DETERMINATION

15. I have given full consideration to the Applicants’ Notice of Motion Application, the rival affidavits and submissions. Before I go into the merits of the Application I wish to state that since the jurisdiction of this Tribunal was not contested by the Parties herein, the same is considered in the affirmative.

16. In my respectful view, I find that the sole issue that falls for determination is

whether the Applicants are entitled to grant of the reliefs sought.

I shall proceed to consider and determine the same as follows:

17. I have noted that both Parties acknowledge the existence of a Lease Agreement that gave rise to the present contractual relationship between them. However, the said Lease Agreement has not been produced before this Tribunal and therefore it is gravely difficult to ascertain whether the alleged breaches of its provisions occurred. I am therefore in no doubt that the purported Lease Agreement having not been produced before this Tribunal for verification, is a matter that this Tribunal cannot pronounced itself substantively in respect of any alleged breaches.

18. I now turn to the question of rent arrears. It is the 1

st

Respondent’s case that the Applicants accrued rent arrears to the tune of

Kshs. 400,000.00

as at

March 2021.

Vide a letter dated

17

th

February 2021,

the Applicants Clerk Wambua and Twelve Brothers admitted and acknowledged the said arrears and sought more time to make payments. On this ground, I am persuaded and consequently find that the Applicants are in breach of their obligation of payment of rent as and when it falls due under the Agreement.

19. As to whether the Suit Premises were a Property of the 1

st

Respondent or the County Government of Kitui, no evidence has been produced before this Tribunal to effect proof of ownership of the Suit Premises. Therefore, the Applicants’ claim that the suit Premises were a Property of the County Government of Kitui fails for lack of proof.

20. The other issue for determination is the legality or otherwise of the manner in which the Respondents levied distress for rent upon the Applicants, allegedly attached the Applicants’ property and threatened to evict them from the Suit Premises. From the onset, it is clear that no goods relating to the Applicants were attached by the 2

nd

Respondent as no proof has been proffered before this Tribunal.

21. The right to levy distress for rent is provided for under the

Distress for Rent Act, Cap 293 Laws of Kenya. Section 2

of the said Act provides for right of distress and states that:

“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.”

22.

Section 5 of Cap 293

further states that:

“Any person having rent in arrear and due upon a demise, lease or contract after the ending or determination of the demise, lease or contract, may distrain for the arrears after the ending or determination in the same manner as he might have done if the demise, lease or contract had not been ended or determined.”

23. The 1

st

Respondent issued a termination notice of the Lease Agreement to the Applicant

1

st

February 2020

which notice has not been availed before this tribunal but a letter dated

19

th

February 2021

has acknowledged the existence of the same and at the bottom by a signature of one Stanley Kyalo Muli and Crack Wambua Munyao on behalf of 12 brothers and they dated the said acknowledgement

5

th

March 2020.

There is no clarity on who the 12

th

Brothers are in person and this tribunal cannot therefore speculate on the same but it appears that the applicants herein are part of the group having described themselves as such in their pleadings and so are the above two through the various correspondences produced herein. Action of any one of them will therefore bind the others in the absence of proof of limited liability. There is no opposition to this Notice neither is there a reference opposing the notice. The only reference before this tribunal is for attachment of goods for rent arrears subject matter of this proceedings.

24. Subsequently, on

11

th

January 2021

the 1

st

Respondent instructed the 2

nd

Respondent to levy distress for rent upon the Applicants. Thereafter, the Applicants in acknowledging the rent arrears requested for some time to settle the rent arrears which request was declined by the 1

st

Respondent vide a letter dated

22

nd

February 2021

. In my respectful view, the import of the foregoing actions is that in so far as it concerned the 1

st

Respondent, the Lease Agreement had terminated and thus he proceeded to levy distress.

25.

Section 15 of Distress for Rent Act

provides thus;

“Where distress is made for any kind of rent justly due, and any irregularity or unlawful act is afterwards done by the party distraining, or by his agents the distress itself shall not be therefore deemed to be unlawful nor the party making it be deemed a trespasser ab initio, but the party aggrieved by the unlawful act or irregularity may recover full satisfaction for the special damage he has sustained thereby in a suit for that purpose;”

26. From the assertions of the Applicants they contend that they left the suit premises due to frustration from the landlord this assertion appears also to rob this tribunal of its jurisdiction as the landlord tenant relationship seems to have ended.

27. Considering the reasons advanced above I find the account of events given by the Respondents more reliable and proceed to make the following determination.

DETERMINATION

In view of the above, in addition to lacking jurisdiction, I find that the Applicants did not prove their case on a balance of probability.

The upshot is that the Applicants’ application dated

26

th

February 2021

and Reference dated even date lack merit and is dismissed with costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling

dated, signed and delivered this

30

th

July 2021

in the presence of

Mayine

holding brief for

Mwindi

for the

Landlord

and

Kimathi

for the

Tenant

.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL