Estate of the Late Josiah Muli Wambua v Gathura t/a Nesbony Teachers Training College & 2 others (Tribunal Case E011, E010 & E012 of 2025 (Consolidated)) [2025] KEBPRT 407 (KLR) (12 September 2025) (Judgment)
Neutral citation:
[2025] KEBPRT 407 (KLR)
Republic of Kenya
Tribunal Case E011, E010 & E012 of 2025 (Consolidated)
Gakuhi Chege, Chair & J Osodo, Member
September 12, 2025
Between
The Estate of the Late Josiah Muli Wambua
Landlord
and
Benson Gathura t/a Nesbony Teachers Training College
1st Tenant
Grace Neema Jefwa t/a Clear Conscience Ministry (Formerly Kings Worship Centre)
2nd Tenant
Samuel Kiragu t/a Bright Future School, Mtwapa
3rd Tenant
Judgment
A. Introduction
1.Before this Tribunal are three consolidated references filed by the Estate of the Late Josiah Muli Wambua, the landlord, against three tenants in respect of business premises situate in Mtwapa, Kilifi County. The suits are BPRT No. E011 of 2025 against Benson Gathura t/a Nesbony Teachers Training College (lead file), BPRT No. E010 of 2025 against Grace Neema Jefwa t/a Clear Conscience Ministry (formerly Kings Worship Centre), and BPRT No. E012 of 2025 against Samuel Kiragu t/a Bright Future School, Mtwapa.
2.In each of these matters, the landlord seeks recovery of substantial rent arrears, authority to levy distress for rent, and costs of the suits. The tenants, while admitting occupation and some arrears, raised defences ranging from disputes over the quantum of arrears, validity of the tenancy agreements, hardships caused by Covid-19, and confusion during succession proceedings in the landlord’s estate.
3.The Tribunal, having directed that the three matters be consolidated due to similarity of parties, subject matter, and reliefs sought, now delivers a composite judgement with BPRT No. E011 of 2025 as the lead file.
B. Analysis of Pleadings and Evidence
4.In BPRT No. E011 of 2025, the landlord’s application dated 2nd December 2024, supported by the affidavit of Martin Wambua, sought orders compelling payment of Kshs. 610,100/= and leave to levy distress. It was deponed that the tenant had entered into a tenancy agreement in 2017 with rent of Kshs. 20,000, later varied to Kshs. 22,000 and then Kshs. 24,000. The tenant allegedly defaulted, accumulating arrears. The supporting affidavit annexed a rent statement (MW-2) and a demand notice (MW-3).
5.The tenant, Benson Gathura, swore a replying affidavit dated 6th May 2025 admitting initial tenancy but disputing the alleged variations of rent, stating that no new agreements were executed after 2017. He denied the arrears figure and sought a joint review of accounts. He cited Covid-19 disruptions to his college and confusion caused by competing demands from the landlord’s heirs.
6.In BPRT No. E010 of 2025, the landlord similarly alleged arrears of Kshs. 720,000/= against Grace Neema Jefwa. The affidavit of Martin Wambua stated that the agreed rent had risen from Kshs. 35,000 in 2017 to Kshs. 42,500 by 2020. The tenant was accused of piecemeal payments and habitual default. Demand notices had been issued but ignored.
7.Grace Neema, in her response, did not deny being a tenant but disputed the arrears, contending that the landlord produced a lease dated 2021 only in 2024. She maintained that such a backdated, unsigned instrument was not binding. She admitted financial challenges but remained willing to pay arrears upon reconciliation.
8.In BPRT No. E012 of 2025, the landlord alleged arrears of Kshs. 948,480/= against Samuel Kiragu, relying on a tenancy agreement dated 17th October 2019 and a rent statement. The landlord argued that the tenant had failed to pay rent consistently, despite occasional partial payments.
9.The tenant, Samuel Kiragu, admitted occupation and some arrears but disputed the quantum. He contended that during Covid-19, the rent had been reduced to Kshs. 25,000 by agreement with the landlord’s agents, but later unilaterally restored to Kshs. 42,500. He further argued that no receipts had been issued for payments made and called for a joint account review.
C. Submissions of the Parties
10.The landlord, through Okenyo Omwansa & Company Advocates, submitted that the tenants had admitted arrears in their affidavits and were therefore estopped from denying liability. Reliance was placed on Section 2 of Cap 301 defining controlled tenancies, and Section 12(1)(h) which empowers the Tribunal to order recovery of arrears. Counsel argued that excuses such as Covid-19 or succession disputes did not extinguish the obligation to pay rent.
11.The landlord cited Samuel Kipkori Ngeno & Another v Local Authorities Pension Trust (2013) eKLR where the Court held:
12.Further reliance was placed on Saheb v Hassanally (1980) KLR 13 where it was stated:'
13.On their part, the tenants through Onyango Onunga Advocates submitted that the arrears figures were exaggerated and unproven. They argued that the alleged tenancy agreements were either unsigned, backdated, or imposed without consent. They contended that the landlord failed to provide full accounts and receipts, and that confusion from the succession dispute created genuine uncertainty as to whom rent was payable.
14.The tenants urged the Tribunal to order joint reconciliation of accounts and to permit structured payment plans. They cited equitable principles that Covid-19 created hardships warranting leniency.
D. Issues for Determination
15.From the pleadings and submissions, the following issues arise for determination:i.Whether costs should be awarded and to whom.i.Whether the landlord is entitled to levy distress for rent.iii.Whether the defences raised excuse or mitigate liability.iv.Whether the tenants are in arrears of rent and the amounts owed.
E. Analysis of the Issues, the Law and Determination
16.On the first issue, the evidence clearly shows that all tenants are in arrears. The figures provided by the landlord are supported by account statements and demand notices. While the tenants dispute the amounts, they failed to tender receipts, bank statements, or reconciled accounts to rebut the landlord’s evidence.
17.Sections 107, 108 & 109 of the Evidence Act, Cap 80, Laws of Kenya provides as follows: -
18.Guided by the foregoing legal provisions, we find and hold that the tenants had a duty to prove that they are up to date with their rent payments and that the rent has remained constant since inception of the lease. We believe in the tabulation of the rent arrears as presented by the landlord.
19.On the second issue, while Covid-19 and succession disputes are acknowledged as real challenges, they do not discharge tenants from their primary obligation. As held in National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd [2001] KLR 112: -
20.Similarly, in Kenya Hotel Properties Ltd v Willesden Investments Ltd [2009] KLR 126, the Court of Appeal observed: -
21.On the third issue, Section 3 of the Distress for Rent Act (Cap 293) provides:
22.We are also guided by Section 12(1)(h) of Cap 301 which grants this Tribunal power to permit the levy of distress for rent.
23.We further rely on the decision in Giella v Cassman Brown & Co. Ltd [1973] EA 358 where the Court held that equitable relief cannot be granted to a party who approaches the court with unclean hands. The tenants herein having admitted arrears cannot invoke equity to avoid distress.
24.On costs, Section 12(1)(k) of the Cap 301 provides that costs of every suit before this Tribunal are in its discretion. However, it is trite law that costs follow the event. The successful party is entitled to costs unless there is a good reason to hold otherwise. In this case, the landlord has succeeded and is entitled to costs in each suit.
25.We therefore find in favour of the landlord in all the three references.
Final Orders
26.Accordingly, the Tribunal makes the following orders: -a.As against Benson Gathura t/a Nesbony Teachers Training College (BPRT No. E011 of 2025) the tenant shall pay Kshs. 610,100/= being arrears due as at 31st October 2024.b.As against Grace Neema Jefwa t/a Clear Conscience Ministry (BPRT No. E010 of 2025) the tenant shall pay Kshs. 720,000/= being arrears due as at 31st October 2024.c.As against Samuel Kiragu t/a Bright Future School, Mtwapa (BPRT No. E012 of 2025) the tenant shall pay Kshs. 948,480/= being arrears due as at 31st October 2024.d.The landlord is granted leave to levy distress for rent under Cap 293 against all the tenants through a Licensed Auctioneer in the event of their failure to pay the adjudged rent arrears within Thirty (30) days hereof.e.The landlord is awarded costs of the consolidated references to be taxed by the Tribunal’s Deputy Registrar upon application.It is so ordered.
JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 12TH DAY OF SEPTEMBER, 2025HON. GAKUHI CHEGE - PANEL CHAIRPERSONHON. JOYCE AKINYI OSODO - PANEL MEMBERIn the presence of: -Mubasu for TenantNo appearance for the LandlordBUSINESS PREMISES RENT TRIBUNAL