Ngumbau Investments Ltd t/a Courtyard Hotel & 2 others [2018] KEELC 1353 (KLR)
The bottom line
#A Kenyan court halted an auction of hotel property because the landlord's family lacked legal authority to demand the rent, and their evidence was improperly filed.
What this practically means
#Executive summary
#Key legal issues
#Admissibility of uncommissioned annextures to a Replying Affidavit
The annextures were expunged; Rule 9 of the Oaths and Statutory Declarations Rules is mandatory and non-compliance is not saved by Article 159(2).
The Defendants' advocate admitted the annextures offended the Oaths and Statutory Declarations Act and Rules and asked the court to excuse the oversight as an error made in haste. The court held the rule is in mandatory terms: an unmarked annexture is not a document recognizable by the court, and such failure is not an undue procedural technicality under Article 159(2). The annextures were therefore expunged.
Whether the distress for rent was lawfully instructed by the deceased lessor's legal representatives
In the absence of evidence that the Proclamation was issued on the instructions of the administrators of the Estate, the Plaintiff demonstrated a prima facie case as against the Defendants' legal standing.
The Lessor died on 22nd August 2015; only administrators with a grant can lawfully instruct levy of distress. All correspondence showed Dephine Musyoki acting 'for administrators of the Estate', but the Proclamation of distrait did not show that the auctioneer's instructions came from duly appointed administrators. No grant or authority was proved, so the Plaintiff established a prima facie case with chances of success on the standing question.
Discrepancy in the claimed rent arrears
The variance between the demand letter (Kshs. 1,590,000) and the Proclamation (Kshs. 2,129,734.90) showed the Defendants were unsure of the payable rent, which could only be ascertained at trial.
The Defendants' advocate's letter of 8th January, 2017 demanded Kshs. 1,590,000 as rent arrears, while the Proclamation of Distrait dated 23rd January, 2018 claimed Kshs. 2,129,734.90. The court held this discrepancy could only lead to one conclusion: the Defendants were not sure of the payable rent, and the actual arrears, if any, could only be ascertained after trial, supporting the grant of interim relief.
Legal principles established
#- An annexture to an affidavit that is not marked or commissioned as required by Rule 9 of the Oaths and Statutory Declarations Rules ceases to be a document capable of being recognized by the court, and such non-compliance is not an undue procedural technicality saved by Article 159(2)
- Only administrators of a deceased lessor's estate, holding a grant of representation, can lawfully instruct auctioneers to levy distress for rent arrears
- Intermeddling with a deceased's estate can be committed by any person who handles estate property without a grant of representation, including a spouse or child
Court orders
#- 1.The uncommissioned annextures on the Defendants' Replying Affidavit are expunged from the record
- 2.The Application dated 5th February, 2018 is allowed as prayed
- Jurisdiction invoked
- Environment and Land Court jurisdiction over the lease and distress for rent; Article 159(2) of the Constitution invoked on procedural technicalities
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngumbau Investments Ltd t/a Courtyard Hotel & 2 others [2018] KEELC 1353 (KLR)", Case Analysis (2018). Application dated 5th February, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1353/eng@2018-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.