Alwy v Mediheal Group Limited (Miscellaneous Civil Application E110 of 2023) [2025] KEELC 6337 (KLR) (6 March 2025) (Ruling)
Neutral citation:
[2025] KEELC 6337 (KLR)
Republic of Kenya
Miscellaneous Civil Application E110 of 2023
J Omange, J
March 6, 2025
Between
Khalid Sharif Alwy
Landlord
and
Mediheal Group Limited
Tenant
Ruling
1.In the Notice of Motion application dated 2nd November 2023 the Landlord/ Applicant seeks for the following orders: -a.Spentb.That this honourable court be pleased to issue an order to Dickson Karume Kariuki trading as Dikemwa Auctioneers to break into LRT No 209/7260/10 including the buildings thereon and attach and remove the proclaimed goods of the Tenant /Respondent for the purposes of levying distress and recovery of the outstanding rent arrearsc.That the officer commanding station (OCS) Eastleigh North Police Station be directed to provide security during the breaking in and attachment and removal of the proclaimed goods of the Tenant/Respondentd.That this honourable court be pleased to grant any other reliefs that it may deem necessary and just in the circumstancese.Costs of this application to be provided for.
2.The application is premised on the grounds on the face of the application and is supported by the Affidavit of Dickson Karume who deposes that the applicant is the registered owner of land parcel L.R.NO 209/7260/10 including the buildings on it. That the Applicant entered into a lease Agreement with the Respondent for a term of 10 years with effect from 15th September 2016. The agreement provided inter alia that rent was to paid every 4 months in advance.
3.He avers that the Respondent has defaulted in payment of rent accumulating to a sum of Ksh 56, 036,382. That demands made to the Respondent to pay the arrears, have yielded no results save for a letter promising to pay.
4.He averred based on this, the applicant instructed him to levy distress for rent and he issued a proclamation notice which notice has not been challenged by the Respondent. It is on the basis of that that this application is brought to allow the auctioneer levy distress on the proclaimed goods to recover the outstanding arrears.
5.The respondent has not filed any response to the application and as such the application is unopposed. On the 23rd September 2024 the court directed the Applicant to file submissions but as at the time of drafting this opinion, the Applicant had not complied.
6.The Applicant and Respondent have a landlord/ tenant relationship as evidenced by the lease agreement dated 4th October 2016 which is attached to the application. The rent payable is stipulated in Clause 3 of the said Lease. There is proof of default as the Respondent vide the letter dated 28th August 2023 acknowledged default in payment of rents.
7.The Applicant instructed Dikemwa Auctioneers, a licensed auctioneer to levy distress upon the Respondent. The Auctioneers did issue a proclamation notice to the Respondent. The auctioneer states that efforts to proclaim the goods were met with distress.
8.Section 3(1) of the Distress for Rent Act provides that:-
9.In the case of Peter Nthenge vs Daniel Itumo & Another Hccc no. 1242 of 1974 Nairobi it was held:-
10.It is therefore evident from the above provision of law and cited case law that distress for rent or right to distress accrues once the tenant is in arrears of rent and rent services.
11.This right serves the purpose of a remedy for the landlord to recover rent that may be in arrears. For this right to be enforced, there must be rent in arrears. In this case the Applicant’s evidence was that at the time he issued the notice dated 13th October 2023, the Respondent owed Ksh 56, 036,382 which has not been disputed.
12.I therefore find that the application is merited and is allowed in the following terms;a.An order is issued to Dickson Karume Kariuki trading as Dikemwa Auctioneers to break into Lrt No 209/7260/10 including the buildings thereon and attach goods belonging to respondent for the purposes of levying distress and recovery of the outstanding rent arrears. Before carrying out the break in the Applicants are to serve the Respondent with this order accompanied with a proclamation notice of 14 days.b.That the officer commanding station (OCS) Eastleigh North Police Station to provide security during the breaking in and attachment and removal of the proclaimed goods of the Tenant/Respondent after confirming that order and proclamation notice were served as directed in (a) above.
RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 6TH DAY OF MARCH 2025JUDY OMANGEJUDGEIn the presence of:Court Assistant MerylynnNo appearance for parties