Wanyama v Okutoyi t/a Armok Auctioneers (Civil Case E446 of 2023) [2026] KEMC 433 (KLR)

The plaintifi ’s case 5. The plaintifi testified an called three witnesses. These were, Mohammed Juma Wepukhulu (PW2), Salim Ali Mwanga (PW2) and Ramadhan Lucheo Chitechi (PW4). 6. PW 2 and PW3 testified as treasurer and assistant treasurer of Bungoma Muslim Association who allegedly instructed the defendant to levy attachment of the plaintifi’s goods. However, the two denied that allegation. On his part, PW4, Iman of Jamia Mosque stated that the plaintifi is his friend and congregant. He added that, he merely gave the plaintifi a free space at the Mosque to operate his tailoring business. The space was outside his house. He averred that there was no tenancy agreement between the plaintifi and the Mosque management committee regarding the same. The defence case 7. The defendant testified and called one witness namely Omar Abdi Mohammed (DW2). He identified himself as the current chairman of Bungoma Muslim Association since on 26/03/2023. He admitted to have given instructions to the defendant to attach the plaintifi’s goods in order to recover rent arrears he allegedly owed to the association. He averred that the plaintifi was their tenant at Jamia Mosque which is owned by the association. Submissions 8. Parties agreed to file written submissions and direction were given by the court to that efiect but only the plaintifi complied. 9. In his submissions, the Plaintifi submitted that;That he has not involved in the leadership wrangles within Bungoma Muslim Association.That he is not a tenant of Jamia Mosque as he was merely given free space to operate his business outside the Imam’s house which is within the Mosque.That the defendant took instructions from the wrong party and attached a wrong party. 10. He prayed to be compensated for the wrongful attachment. Issues for determination. 11. These are: 1. Whether the Plaintifi was a tenant of Bungoma Muslim Association. 2. Whether the Plaintifi was in any rent arrears. 3. Whether the Defendant was entitled to attach the Plaintifi’s goods under distress for rent arrears. 4. Whether the Defendant was liable as sought in this suit and if so; 5. Whether orders sought are due for determination. Determination 12. The plaintifi’s suit is hinged on the allegation that his business goods were attached illegally by the defendant. On his part, the defendant indicated that the same was pursuant to lawful instructions he received from Bungoma Muslim Association upon the plaintifi, who was allegedly their tenant fell into rent arrears. The monthly rent was allegedly Kshs. 4,000/= per month. The arrears allegedly stood at Kshs. 12,000/= per the Notice dated 01/11/2023. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/433/eng@2026-03-19 2

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13. The matter therefore concerns distress for rent which was levied by defendant on behalf of his purported principal namely Bungoma Muslim Association. 14. The attachment was premised on the allegation that he was a tenant of Bungoma Muslim Association from whom instructions to attach originated. 15. Levying of Distress for Rent arrears is a matter which is permitted by law under the Distress for Rent Act. Under Section 3 of the Act, it is provided; "Subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrears and due upon a grant, lease, demise or contract shall have the same remedy by distress for the recovery of that rent or rent service as is given by the Common Law of England in a similar case.” 17. The essence and or importance of that provision is that, enables the landlord to secure the payment of rent by seizing goods and chattels found upon the premises in respect of which the rent or obligations are due- see John Nthumbi Kamwithi v Asha Akumu Juma [2018] KEHC 5161 (KLR). 18. It is trite that for distress for rent to be valid and lawful, Section 5 of the Act dictates that during the subsistence of a tenancy or six months upon its determination. "Any person having rent in arrears and due upon a demise, lease or contract after the ending or determination of a demise, lease, or contract, may distrain for arrears after the ending or determination in the same manner as he might have done if the demise, lease or contract had not been ended or determined: Provided that distress under this section shall be made within the space of six months after determination of the demise, lease or contract and during the continuance of the Landlord’s title or interest, and during the possession of the tenant for which the arrears became due.”see C.Y.O Owayo v George Hannington Zephania Aduda t/a Aduda Auctioneers & another [2007] KEHC 1390 (KLR) 19. From the said case, an illegal____ distress arises where;There is no right to distrain or,A wrongful act was committed at the beginning of the levy thereby invalidating all subsequent proceedings. 20. The same may occur if;A landlord levies distress after he has parted with his reversion,The distress is done by a person in whom the reversion is not vested,A distress done when no rent is in arrears,A distress is for a claim or debt which is not rent, amongst others. 21. The existence of a tenancy contract between the plaintifi and the Bungoma Muslim Association was denied by the plaintifi. He explained that, he was merely given free space at the verandah of Jamia Mosque Bungoma to carry out his tailoring business for free. He denied that the said Mosque is under the management of Bungoma Muslim Association. He reiterated that, he had no tenancy agreement with neither. PW4, the Imam of Jamia Mosque confirmed that he gave the plaintifi free space on the verandah of his situated within the Mosque to operate his tailoring business. He added that all tenants of Jamia Mosque were paying rent to the Management Committee of the Mosque and not to Bungoma Muslim Association. 22. It emerged during the hearing that there exists a leadership dispute amongst members of Bungoma Muslim Association on who their true oficials are and further that, it was not certain if Jamia Mosque is under their management and control. PW2 and PW3 claimed to be the bona fide Chairman and https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/433/eng@2026-03-19 3

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Assistant Chairman of the Association and produced a search on who its true registered oficials are. But DW2 similarly claimed to the Chairman of the same association and explained that he has been in that position since 26/02/2923. Amongst the documents he relied upon was a copy of Bungoma Muslim Association (BMA) Dispute Resolution Agreement date 25/03/2023. Emerging from that letter is the fact that new ofice bearers including DW2 were agreed upon and handed over ofice management by consensus following the dispute that arose amongst the members of the association. 23. However, the dispute apparently escalated thereby prompting the Registrar of Societies to write to the association their letter dated 21/12/2023. In that letter, the Registrar was unable to ascertain the true identity of the association’s elected oficials whereupon, he asked them to furnish him “evidence of the settlement of the dispute and of the proper appointment of the lawful oficers of the society or of the institution of proceedings for the settlement of such dispute.” It appears that the letter dated 25/03/2023 was not in their picture by that time. 24. Clearly, by the time the plaintifi’s goods were purportedly attached by the defendant on the alleged instructions of the association on 01/11/2023, the dispute was yet to be oficially resolved with the registrar. This means that the former registered oficials remained in force. Those oficials included PW2 who sided with the plaintifi in this case. Their position of the registered oficials of the association was that they never gave any instructions to the defendant to attach the plaintifi’s goods. A letter written by their Chairman one Buyela M. Wanjala dated 03/11/2023 attests to this fact. 25. In the circumstances, there instructions to attach was unlawful given that, the same were by purported oficials of the association who were not duly recognized by the Registrar. I would on this account agree with the plaintifi that the defendant took instructions from a wrong party. Evidently, those oficials had no right to levy distress against the plaintifi in the first place. 26. Secondly, per evidence of PW4, all tenants of the Jamia Mosque pay rent to the Mosque’s Management Committee. He reiterated that though the Mosque is situated on land co-owned by the two entities, its management including collection of rent is done by its Management Committee. But according to him, the plaintifi did not constitute one of the Mosque’s tenants. 27. His evidence, if true, would mean that the plaintifi was a free licensee who was not paying any rent at all. 28. In absence of any cogent rebuttal of the plaintifi’s evidence on the circumstances under which he was permitted to operate his business at the Mosque premises, by the defendant and/ or his principals, I would find that the same buttresses the plaintifi’s case and goes on to show that his goods were illegally and unlawfully attached. 29. Clearly, the plaintifi proved that he was neither a tenant to Bungoma Muslim Association or Jamia Mosque nor that he was in any rent arrears. These are twin factors which also invalided the distress for rent which the defendant levied against him. 30. The court having considered this matter as a whole, judgment is now entered in favour of the Plaintifi as follows: a. That a declaration be and is hereby issued that the attachment of his goods conducted by the Defendant on 1/11/2023 was illegal, improper and unlawful ab initio. b. That the Defendant is ordered to refund/release Kshs20,000/= which was paid to him by the Plaintifi as security for costs vide orders dated 4/12/2023. c. The Defendant to pay Kshs100,000/= to the Plaintifi as general damages for the illegal attachment/seizure of his goods. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/433/eng@2026-03-19 4

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d. The Plaintifi is awarded costs of this suit. DATED AND DELIVERED IN OPEN COURT THIS 19TH DAY OF MARCH 2026. HON. R. B. N. MALOBA SPM 19/3/2026 In the presence of; Plaintifi in person N/A for Otsiula for the Defendant https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/433/eng@2026-03-19 5

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