Milkah Chebosis Sitati & another v Nesco Services Limited [2017] KEELC 2595 (KLR)
The bottom line
#Kenyan tenants who pay rent to a landlord's employee through M-pesa can win protection against eviction and seizure of goods when the landlord denies receiving it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs had a prima facie case on the validity of the distress for rent
Yes, as to rent paid to Akello; the Defendant was deemed to have received rent paid through its employee who issued receipts in its name, and no authority to the contrary was proved.
The court applied the Giella test. Akello was the Defendant's employee who collected rent and issued receipts in the Defendant's name. An agent acting within apparent authority binds the principal, so payments to Akello were prima facie payments to the Defendant. Whether Akello remitted the money was a matter between him and the Defendant, and the issue of deemed receipt was arguable and could not be resolved at the interlocutory stage.
Whether the Defendant could levy distress based on unilaterally increased rent of Kshs. 45,000/-
No; the 2nd Plaintiff, holding over after expiry of his lease, occupied on the same terms until new terms were agreed, so the increased rent had no prima facie basis.
The 2nd Plaintiff's lease expired by effluxion of time on 31st August 2013 and no new lease was agreed. A holding-over tenant continues on the same terms pending agreement or vacating. The Defendant could not impose a new rent of Kshs. 45,000/- per month on the tenant and levy distress for it; the 2nd Plaintiff therefore established a prima facie case on this aspect.
Whether damages would be an adequate remedy
No; the proclaimed goods were household items in everyday use, and their removal would cause serious inconvenience not compensable in costs.
The auctioneer had already proclaimed the Plaintiffs' household goods, which were items of everyday use. Their removal for sale would cause serious inconvenience not compensable in costs. Further, a party cannot continue with an apparently illegal distress merely because he is capable of paying damages if the distress is later found unlawful.
Legal principles established
#- An employee receiving rent on behalf of the landlord is presumed to act on the landlord's instructions unless the contrary is proved; a principal is responsible for acts of its agent within the agent's authority.
- A tenant holding over after expiry of a lease occupies on the same terms until new terms are agreed or he vacates; the landlord cannot unilaterally impose a new rent.
- A party cannot be allowed to proceed with apparently illegal distress for rent merely because he can pay damages.
Court orders
#- 1.Pending the hearing and determination of the suit, the Defendant restrained from levying distress against the Plaintiffs with respect to the disputed rent paid to Boniface Odhiambo Akello
- 2.Pending the hearing and determination of the suit, the Defendant restrained from levying distress against the 2nd Plaintiff based on the increased rent of Kshs. 45,000/- per month
- 3.The orders shall not release the Plaintiffs from their obligation to pay the agreed rent as and when it falls due, and shall not prohibit the Defendant from levying distress for rent lawfully due
- 4.Costs of the application to be in the cause
- Jurisdiction invoked
- Original civil jurisdiction over landlord and tenant dispute; no specific constitutional/statutory provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Milkah Chebosis Sitati & another v Nesco Services Limited [2017] KEELC 2595 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2595/eng@2017-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.