Distress for rent is the seizure of a tenant’s goods for failure to pay rent with a view of selling them to recover the outstanding rent arrears. The Distress for Rent Act(Cap 293) (the Distress for Rent Act)as read with the Auctioneers Act(Cap 526)(the Auctioneers Act) and the Rules provide the legal framework for the distress for rent process. The right of distress for rent as contemplated under Section 3 of the Distress for Rent Act accrues where the tenant is in arrears under a Lease/Tenancy Agreement.
What constitutes irregular distress?
- Not giving the required notices under the Act; and
- Distraining of goods that have been exempted from distress under the Act which include but are not limited to, wearing apparel and bedding, tools of trade.
Do irregularities in the distress for rent process render the distress unlawful?
According to Section 15 of the Distress for Rent Act, irregularities in the distress process does not render it unlawful. The remedy available to an aggrieved party is a suit for special damages sustained due to any unlawful act or irregularity in the distress for rent process.
Implication of Section 15 to Landlords and tenants?
- Irregularities in the distress for rent will not render the distress unlawful and the tenant’s remedy is in a claim for special damage occasioned by the said irregularity which liability is to be borne by the landlord.
- The damages contemplated under Section 15 of the Distress for Rent Act are in the nature of special damages and the same ought to be proved on a balance of probabilities. In failure to prove the same, they are not awardable. Case in point: Power Pack Hydraulics Limited v Jacinta M. Ndegwa t/a Jarmat Enterprises Limited eKLR, wherein the Court noted that the Auctioneers had attached some tools of trade belonging to the tenant which was an irregularity, but did not cause the distress to be unlawful. The Court noted that although the tenant had prayed for special damages, no proof had been availed and therefore the damages were not awarded.
Irregular distress vis-vis illegal distress
An illegal distress is one that is wrongful from the start. The following instances constitute illegal distress as affirmed by the Court of Appeal case in Cyo Owaya vs. George Hannigton Zephania Aduda T/a Aduda Auctioneers & Another (2007) ;
- Distress where no rent is in arrears;
- Distress for a claim or debt which is not rent;
- Distress after rent in arrears has been paid;
- A distress not carried out in the premises occupied by the tenant; and
- A distress carried out in the night that is between sunset and sunrise.
Illegal distress as opposed to irregular distress attracts both special damages and general damages. Further, Section 15 of the Distress for Rent Act is only applicable to irregular distress.
Conclusion
In a nutshell, irregularities in the distress for rent process have ramifications on the landlords and/or property owners. Though the distress process is not rendered unlawful by such irregularities, the landlord would be required to bear liability for any damage caused to the aggrieved party. Conversely, a tenant that suffers damage due to irregularities in the distress process has a remedy in a suit for the special damages so suffered. Illegal distress on the other hand attracts more liability and general damages awardable in addition to the special damages are at the discretion of the court assessed on a case to case basis.
How Can we Help?
The Dispute Resolution team at CM Advocates LLP assists both landlords and tenants in navigating rent-related disputes with clarity and confidence. Whether you are seeking to recover rent or respond to a distress action, our team offers practical, results-driven legal support to protect your rights and limit risk.
Contact Persons & Contributors
Dianah M. Gichuru –Partner & Head of Unit
Caroline Kendi- Senior Associate
Victoria Njoroge- Associate
Disclaimer
This alert is for informational purposes only and should not be construed as legal advice