Landlords & Tenants’ Remedies during Distress for Rent in Kenya

Victor Ngaruiya

 

According to the Black’s Law Dictionary, distress for rent entails the taking of a personal chattel out of the possession of a wrong-doer (tenant) into the custody of the party injured (landlord), to procure a satisfaction for a wrong committed. In Kenya, this is currently captured under the Rent Restriction Act Chapter 296, the Distress for Rent Act, the Auctioneers Act, the Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act Chapter 301, Laws of Kenya. This Alert seeks to highlight various existing remedies between a tenant and a landlord.

The Fate of the Landlord and Tenant Bill of 2021

 

At first instance, this was a Bill intending to grant ‘less powers to the Landlords and subsequently place more obligations on them’. The Landlord and Tenant Bill 2021 dated 12th February, 2021, sponsored by Majority Leader (then) Amos Kimunya did not stand to see the light of the day as data from the Bill tracker platform reveals that the Bill on 14th May 2021 was still in its first stage. Later the Bill was subjected to review in Parliament and silence ensued thereafter

The Bill had sought to repeal the Distress for Rent Act, the Rent Restriction Act and the Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act consolidating the laws relating to renting of business and residential premises. In addition the Bill had proposed that the tribunals were to be empowered in granting injunctions, enforce its own orders and punish for contempt as any court of law which is not applicable to the current tribunals.

Where to Seek your Remedy

 

The Business Premises Rent Tribunal (BPRT) is a quasi-judicial body established under Section 11 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301 (Revised 2015). The tribunal has jurisdiction over controlled tenancies. Section 2 of the Act defines a controlled tenancy as a tenancy of a shop, hotel or catering establishment which; Has not been reduced into writing (Unfortunately, most tenants seeking assistance from the Business Premises Rent Tribunal (BPRT) do not possess a proper written lease agreement. Instead, most rely on this provision to infer that the tenancy agreement was oral and implied).

Secondly, In the event that the controlled tenancy has been reduced into writing and which ;

-Is for a period not exceeding five years
-Contains a provision for termination, other than for breach of covenant , within five years from the commencement date
-Relates to premises of a class specified by notice in the Gazette by reference to sub-section 2 of the same Act.

Jurisdiction of the BPRT

The BPRT has jurisdiction to hear and determine disputes relating to:
1.The amount of rent payable by a tenant
2.The termination of a tenancy
3.The recovery of possession of a business premise by a landlord
4.Any other matter relating to a business premises rent

Steps to follow while filling a case at the Business Premises Rent Tribunal

1. 1. File a Reference. A reference is a document used to initiate a complaint either by the Landlord or Tenant seeking redress at the BPRT. This document can be traced from the First Schedule of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Regulations as FORM C.
   2. File a written application with the BPRT usually in form of a Notice of Motion. The application must include the following details:

• • Names and addresses of the Landlord and Tenant;

• • Nature of the orders or relief sought from the Honourable Tribunal; and

• • The grounds upon which such orders are sought.

3. 3. The application may be accompanied by a Certificate of Urgency which is filed by an Advocate certifying the matter as urgent. The certificate is only limited to certain circumstances where if delay is occasioned the Tenant or Landlord may suffer an irreparable injury. It may also be filed where there are potential threats to Tenant’s fundamental right to peaceful and quiet possession without interference from the Landlord and/or its agents or employees.
   4. The application should be accompanied by a Supporting Affidavit which is duly sworn by the Tenant or Landlord and if it is a company, a duly authorized official such as Director. The Affidavit should contain a narration of how the dispute arose and the evidence to be relied. An Affidavit must be duly signed and stamped by both the affiant/deponent and a Commissioner for Oaths who is a duly admitted Advocate of the High Court of Kenya with a current Practicing Certificate.
   5. Upon filing of the Reference and the Application by either the Landlord or the Tenant, the Tribunal may issue interim orders. These are orders which are meant to preserve or maintain the status quo before the dispute arose between the conflicting parties until the hearing and determination by the Honourable Tribunal of both the Reference and Application. Consequently, a party to whom such interim orders are granted is required to serve the other party to enable them file and serve their response before an interpartes hearing. The answer to this application is usually canvassed by way of a Replying Affidavit.
   6. N/B: If you are not satisfied with the decision of the BPRT, you may appeal to the High Court.

Small Claims Court does not have the Jurisdiction to entertain a claim for rent and rent matters

At times rent default may extend beyond the period of the tenancy agreement. Following a judgment by D.A Majanja J, the court held that rent arrears that accrued even after the termination of the tenancy agreement can be collected as debt. This was the holding in the case of Charles Kakai Manyungu Channan Vs David Mukwanja (2019).

From the above upshot, if the debt accrued from the rent and/or rent arrears, the matter will fall under the Magistrate courts subject to pecuniary consideration. In the case of Samuel Kamau Macharia Vs Kenya Commercial Bank and Others SCK Application No. 2 of 2011 (Eklr), the court held that a claim for rent does not give rise to tortious liability nor a claim for compensation. Further, the court held that the Small claims court does not have jurisdiction to hear and determine matters of a claim for rent pursuant to Section 12 of the Small Claims Act.

Remedies available to landlords for non-payment of rent

1.Payment of penalties
2.Distress for rent (Involves seizing of the tenant’s goods)
3.Forfeiture of lease against the tenant ( A 30 days’ notice of forfeiture of the lease)
4.Civil action for recovery of rent arrears

Rights available to the tenants during eviction

1. Right to proper written notice (3o days for non-payment of rent)

2. Right to dispute the eviction

3. Right to peaceful enjoyment of the property

4. Right to compensation for wrongful eviction.

Conclusion

There is a thin divide that each party must be aware of; For instance, According to Section 15 of the Distress for Rent Act, irregularities in the Distress Process does not render it unlawful. Instead, the remedy available to an aggrieved party is a suit for special damages sustained due to any unlawful act or irregularity in the Distress for Rent Process.