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ELCPartially AllowedELC Case (as extracted; heading not stated in the excerpt)· [2022] KEELC 3894 (KLR)

Arunga & another v NCBA Bank Kenya PLC & 3 others (Environment & Land Case 4 of 2018) [2022] KEELC 3894 (KLR)

Environment and Land Court
28 July 2022
SOS Okong'o
2,354 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A new property owner cannot seize a former owner's goods for 'rent'—occupiers who refuse to leave are trespassers, not tenants, Kenyan court rules.

What this practically means

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Executive summary

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The plaintiffs were registered owners of Kiambaa/Kihara/2861, which they charged to the 1st defendant to secure a loan. Following an auction on February 20, 2020, the property was sold to the 2nd defendant for Kshs 22,400,000/- against a 2019 valuation of Kshs 87,500,000/-. The plaintiffs sued challenging the sale as unprocedural and fraudulent. Before the court were two applications by the 1st plaintiff: one seeking restraint of distress for rent levied by the 2nd defendant and interlocutory judgment against him, and another seeking return of attached goods, production of CCTV footage of the auction date, and costs. The 2nd defendant had levied distress on March 1, 2022, claiming Kshs 4,800,000/- in rent, and on April 22, 2022 auctioneers removed household goods from the suit property. The court held that no landlord and tenant relationship existed between the parties; the plaintiffs, having refused to vacate, were at best trespassers from whom only damages for trespass and mesne profits could be recovered. Rent is contractual, and in the absence of an agreed rent distress could not be levied; the distress and removal of goods were illegal. The court granted a temporary injunction restraining further distress and ordered the 2nd defendant to return forthwith the attached goods. However, it refused the prayer for production of CCTV footage as a fishing expedition with no evidentiary foundation, and declined interlocutory judgment via formal application since the Civil Procedure Rules provide a dedicated procedure and the 2nd defendant had by then filed a defence. Each party was ordered to bear its own costs of the two applications.

Key legal issues

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01

Whether a purchaser at auction can levy distress for rent against the previous owner in occupation

Holding

The distress was illegal; former owners who refuse to vacate are trespassers, not tenants, and only damages for trespass and mesne profits are recoverable

Reasoning

The court held that registration of the suit property in the 2nd defendant's name did not make the previous owners his tenants. Rent is contractual and can only be recovered from a tenant. In the absence of an agreed rent there is no basis for distress, and no explanation was given for the Kshs 4,800,000 claimed. The plaintiffs, having refused to vacate, were at best trespassers from whom only damages for trespass and mesne profits could be recovered. The distress and removal of goods were therefore illegal.

p. 4
02

Whether production of CCTV footage should be ordered at interlocutory stage

Holding

Refused; no basis was laid for the prayer

Reasoning

The court found no evidence that the CCTV was working or that the event of February 20, 2020 was recorded, and the plaintiffs had not been shown to have asked the 3rd defendant for the footage. The prayer was characterised as a fishing expedition for evidence.

p. 4

Legal principles established

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  • Rent can only be recovered from a tenant; distress cannot be levied against a trespasser
  • In the absence of an agreed rent, there is no basis upon which distress can be levied

Court orders

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  1. 1.A temporary injunction restraining the 2nd defendant, by himself or through his agents including High Class Auctioneers, from levying distress for rent against the 1st plaintiff, attaching and/or selling any movable property from the suit property pending hearing and determination of the suit
  2. 2.The 2nd defendant shall return forthwith the 1st plaintiff's goods attached by High Class Auctioneers from the suit property pending the hearing and determination of the suit
  3. 3.Each party shall bear its own costs of the two applications

Authorities

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Legislation

  • Civil Procedure Rulesprocedure for default judgment
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit property Kiambaa/Kihara/2861 and interlocutory applications therein

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, "Arunga & another v NCBA Bank Kenya PLC & 3 others (Environment & Land Case 4 of 2018) [2022] KEELC 3894 (KLR)", Case Analysis (2022). ELC Case (as extracted; heading not stated in the excerpt). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3894/eng@2022-07-28

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