Automated Summary
Key Facts
In the case of Eguchi & another v Nathani & another (Tribunal Case E147 of 2024), the Business Premises Rent Tribunal ruled on December 13, 2024. The dispute centered on whether tenants (Velly Eguchi and Miriam Gakuru) owed rent arrears to landlord Dr. Wasim Nathani. The landlord claimed arrears totaling Kshs. 688,000/–, including Kshs. 301,000/– in 2020, Kshs. 43,000/– in 2021, Kshs. 86,000/– in 2022, and Kshs. 258,000/– in 2024. The tenants argued they had paid rent for June and July 2024 and invoked the doctrine of impossibility during the Covid period. The court found no evidence to support the tenants' claims of rent exemption during the pandemic and upheld the landlord's right to distress for rent under Section 3(1) of the Distress for Rent Act (Cap 293). The tenants' application was partially granted only to require the landlord to maintain a rent book, with all other prayers denied.
Issues
- The court determined whether the tenants were entitled to the orders sought in their application, including a permanent stay of execution of distress for rent, a directive for the landlord to maintain a rent book, and a finding that no rent was payable during the Covid period under the doctrine of impossibility.
- The court assessed if the doctrine of impossibility justified non-payment of rent during the pandemic, concluding that tenants failed to demonstrate specific hardship or closure, and the court generally does not accept that business rent is unpaid during such periods.
- The court referenced Section 3(1) of Cap 293, affirming the landlord's right to distress for arrears, and found the tenants in arrears, thus allowing the distress.
Holdings
- The landlord is directed to keep and make available a rent book, as required by Section 3(3) of Cap 301.
- The tenant's prayers for a permanent stay of execution of the distress, application of the doctrine of impossibility during the Covid period, and other relief are declined.
- The tenant is in rent arrears, and the landlord's right to distress for rent has crystallized, as per the court's findings.
Remedies
- The Tenants are ordered to bear the costs of the Application.
- The Landlord is directed to keep and make available the rent book as per Section 3(3) of Cap 301, which mandates that failure to keep a rent book is an offence.
- All other prayers in the Application are declined, including the request for a permanent stay of execution of the distress for rent and the application of the doctrine of impossibility during the Covid period.
Legal Principles
The court considered the tenants' argument that the doctrine of impossibility applied during the Covid period, but found no evidence to support this claim. The tenants failed to demonstrate that their business was closed or that they sought a rent waiver, leading the court to reject the frustration defense for rent payment obligations.
Precedent Name
Samuel Kipkorir Ng'eno & Another vs Local Authorities Pension Trust (Registered Trustees) and Another
Cited Statute
- Business Premises Rent Tribunal Act
- Distress for Rent Act
Judge Name
Cyprian Mugambi
Passage Text
- "I do not therefore think the Tenants have established any firm grounds for the court to find that the doctrine of impossibility applied to the tenancy between the parties during the Covid pandemic."
- "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."
- "The Tenant's first and main obligation is to pay rent as and when it becomes due for the Landlord has a right to an income from his investment."