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ELCAllowedNot stated in judgment· [2021] KEELC 3833 (KLR)

Ramadhan Saidi & 5 others v Sudi Hafidhi & another [2021] KEELC 3833 (KLR)

Environment and Land Court
16 March 2021
CYC.K. Yano
1,230 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court stopped an attempted auction of family homes because the collectors had no contract and no letters of administration over the landlord's estate.

What this practically means

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Executive summary

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The plaintiffs, owners of residential houses on parcels of land in Changamwe, Magongo, Mombasa County, sued by plaint dated 3rd November 2016 seeking a declaration that the defendants could not sell their houses to recover Ground Rent, a permanent injunction against sale, auction, demolition or other interference with the houses, costs and interest, and further relief. Their case was that the defendants had instructed Tip Top Auctioneers, through the firm of Ojode Udoto & Onjoro, to levy distress for alleged Ground Rent arrears allegedly owed to the estate of the late Soud Bin Ali Bashir, the plaintiffs' former landlord. The plaintiffs, who purchased their houses from the deceased landlord and held agreements with the 2nd defendant for processing of titles, denied any landlord/tenant or contractual relationship with the defendants and objected that notices of distress had also been issued to five persons who were dead, death certificates of whom were produced. The defendants were served but neither entered appearance nor filed a defence, leaving the plaintiffs' evidence uncontroverted. The court framed four issues: the existence of a landlord/tenant or contractual relationship, the legality of the notices of distress, who is entitled to distrain for rent, and entitlement to relief. Applying Section 3 of the Distress for Rent Act, the court held that only a person having rent in arrears due upon a grant, lease, demise or contract may distrain, that the defendants proved neither such relationship nor letters of administration over the deceased's estate, and that the distress was illegal. Judgment was entered for the plaintiffs as prayed, with costs to the plaintiffs.

Key legal issues

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01

Whether the defendants could lawfully issue notices of distress against the plaintiffs

Holding

The distress for rent was illegal because the defendants showed no contractual relationship with the plaintiffs and produced no letters of administration evidencing their capacity over the deceased landlord's estate.

Reasoning

Section 3 of the Distress for Rent Act permits only a person having rent in arrears and due upon a grant, lease, demise or contract to distrain. The plaintiffs' uncontroverted evidence was that their agreement was with the deceased landlord, not the defendants. The defendants, though served, filed no defence and produced no letters of administration, so their capacity and any right to distrain were unestablished, rendering the notices of distress null and void.

p. 2
02

Validity of notices of distress issued against deceased persons

Holding

Notices of distress cannot validly be issued or served on persons who are dead.

Reasoning

The plaintiffs produced death certificates showing that several persons served with notices of distress, including Mohamed Mzee, Rashid Iddi Khamisi, Mwanaidi Mbaruk, Gabriel Waiharo Hinga and Rashid Kariuki Mugo, were dead. The court accepted the plaintiffs' submission that dead people cannot receive notices, making service on them legally ineffective and the distress process defective.

p. 2

Legal principles established

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  • Only a person having rent in arrears and due upon a grant, lease, demise or contract may distrain for rent; a contractual relationship is a prerequisite to distress for rent.
  • A person levying distress on behalf of a deceased landlord's estate must demonstrate letters of administration.

Court orders

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  1. 1.Judgment entered for the plaintiffs against the defendants as prayed in the plaint
  2. 2.Declaration that the 1st and 2nd defendants cannot sell the plaintiffs' houses/properties to recover Ground Rent and that any such sale is null and void
  3. 3.Permanent injunction restraining the 1st and 2nd defendants, their agents, servants and/or employees from selling, auctioning, demolishing, charging, subdividing, taking possession of or otherwise dealing with the houses on the suit parcels
  4. 4.Costs of the suit awarded to the plaintiffs

Authorities

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Legislation

  • Distress of Rent ActSection 3
  • Distress for Rent Act (Cap 293, Laws of Kenya)Section 3(1)

Cases cited (3)

  • Boniface Njenga Kuria -v- Julius Keru Njoroge & 5 Others
    (2008) eKLR
  • Ideal Locations Limited -v- Nakumatt Holdings Limited & Another
    (2015) eKLR
  • C.Y.O. Owayo -v- George Hannington Zephania Aduda t/a Aduda Auctioneers & Another
    (2007) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property disputes

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ramadhan Saidi & 5 others v Sudi Hafidhi & another [2021] KEELC 3833 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3833/eng@2021-03-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.