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ELCAllowedNotice of Motion application dated 2nd November 2023· [2025] KEELC 6337 (KLR)

Alwy v Mediheal Group Limited (Miscellaneous Civil Application E110 of 2023) [2025] KEELC 6337 (KLR)

Business Premises Rent Tribunal / Environment and Land Court jurisdiction - Landlord and Tenant court
6 March 2025
JOJudy Omange
867 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a landlord to break into premises and seize goods worth over Ksh 56 million in rent arrears, confirming landlords can distrain even without a lease clause saying so.

What this practically means

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Executive summary

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The Landlord/Applicant, registered owner of L.R. No 209/7260/10, moved the court by Notice of Motion dated 2nd November 2023 seeking leave for Dikemwa Auctioneers to break into the premises and attach and remove proclaimed goods of the Tenant/Respondent to levy distress for rent arrears of Ksh 56,036,382, with police security from the OCS Eastleigh North Police Station. The application was supported by the affidavit of Dickson Karume, the auctioneer, who deponed to a 10-year lease effective 15th September 2016 requiring rent every 4 months in advance, a proclamation notice issued and unchallenged, and a letter from the Respondent acknowledging default. The application was unopposed; the Respondent filed no response, and the Applicant, though directed to file submissions, did not comply. The court found the landlord/tenant relationship established by the lease dated 4th October 2016 and default admitted by the Respondent's letter of 28th August 2023. Relying on Section 3(1) of the Distress for Rent Act and the decision in Peter Nthenge v Daniel Itumo & Another, the court held that the right to distress arises at common law once rent is in arrears and need not be expressly reserved. The application was allowed: the auctioneer was authorised to break in and attach goods, subject to prior service of the order with a 14-day proclamation notice, with the OCS Eastleigh North to provide security upon confirming service.

Key legal issues

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01

Whether distress for rent lies for the outstanding arrears

Holding

The application is merited; the right to distress accrues once the tenant is in arrears and the arrears of Ksh 56,036,382 were undisputed.

Reasoning

The court found a valid landlord/tenant relationship evidenced by a lease agreement dated 4th October 2016 with rent stipulated in Clause 3. Default was proved by the Respondent's own letter dated 28th August 2023 acknowledging arrears. A licensed auctioneer issued a proclamation notice which was not challenged. Under Section 3(1) of the Distress for Rent Act, the landlord has the same remedy by distress as at common law, and the cited authority confirms the right need not be expressly reserved.

p. 2

Legal principles established

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  • The right of a landlord to distrain for arrears of rent arises at common law and accrues once the tenant is in arrears of rent and rent services; it need not be expressly reserved in the lease.

Court orders

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  1. 1.An order issued to Dickson Karume Kariuki trading as Dikemwa Auctioneers to break into Lrt No 209/7260/10 including the buildings thereon and attach goods belonging to respondent for the purposes of levying distress and recovery of the outstanding rent arrears
  2. 2.Before carrying out the break in the Applicants are to serve the Respondent with this order accompanied with a proclamation notice of 14 days
  3. 3.The officer commanding station (OCS) Eastleigh North Police Station to provide security during the breaking in and attachment and removal of the proclaimed goods of the Tenant/Respondent after confirming that order and proclamation notice were served as directed in (a) above
Jurisdiction invoked
Distress for Rent Act, Section 3(1)

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, "Alwy v Mediheal Group Limited (Miscellaneous Civil Application E110 of 2023) [2025] KEELC 6337 (KLR)", Case Analysis (2025). Notice of Motion application dated 2nd November 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6337/eng@2025-03-06

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