1. I delivered a Ruling in this matter on 28/03/2025 on a Preliminary Objection, in which Ruling I rejected some points of Objection raised and deferred others for determination after the full hearing of the Petition. In the Ruling, I gave a brief description of the Petition filed herein, and set out the prayers made therein as follows:
“2. The background of the matter is that the Petitioner vide the Petition dated 3/12/2024 and filed on 6/12/2024 through Messrs K. Michuki Law Advocates, sought the following lengthy list of prayers:
(a) A declaration that the right to distress for rent ceased to exist or accrue in Kenya on 19 th March, 2014 upon commencement of Section 71 of the English Tribunals, Courts and Enforcement Act 2007;
(b) A declaration that the Distress for Rent Act is invalid in so far as it lacks a foundational basis following the repeal of the common law right to distress for rent in England;
(c) A declaration that the Distress for Rent Act is invalid in so far as it denies, violates, infringes and threatens a tenant’s rights to; (i) equality and freedom from discrimination, (ii) human dignity, (iii) privacy, (iv) property, (v) consumer rights, and (vi) access justice
(d) A declaration that impounding and carting away of the Petitioner’s assets by the Respondents was a violation to its rights to; (i) equality and freedom from discrimination, (ii) human dignity, (iii) privacy, (iv) property, (v) consumer rights, and (vi) access justice;
(e) A declaration that the impounding and carting away of the Petitioner’s assets by the Respondents was null and void ab initio;
(f) A mandatory injunction does issue directing the Respondents to immediately release to the Petitioner; (i) motor vehicle registration number KCH 130B, (ii)motor vehicle registration number KCJ 036T, (iii) 71 containers of 20 litres cooking oil and (iv) goods being ferried in the motor vehicle registration number KCJ 036T worth Kshs.164,435/;
(g) The Court be pleased to grant compensation in the sum of Kenya Shillings Nine Hundred and Fifty-Seven Two Hundred and Eighty Shillings (Kshs. 957,280/-) for hire of transport;
(h) The Court be pleased to grant interest on (g) above from the date of filing the suit till payment in full;
(i) Further to (b) the Court be pleased to grant the Petitioner general, constitutional and aggravated damages for the impounding of its assets;
(j) A declaration that under the provision of the Value Added Tax Act, 2013, a tax invoice for commercial rent must be issued at the time of the taxable supply, namely; the issuance of the rent invoice;
(k) A declaration that the 1 st Respondent violated the Petitioner’s rights to; (i) human dignity, (ii) property and (iii) consumer rights by failing to issue it with tax invoices for the period February, 2022 to date;
(l) Further to (g) the Petitioner be granted general, constitutional and aggravated damages for the violation of its rights
(m) A declaration that monies currently held in ABC bank account no. 007243001000793 as rent be utilized, upon payment of the current value added tax, to pay any outstanding value added tax arrears owed to the interested party in relation to rent paid for the period February, 2022 to October, 2023 with a tax invoice being issued to the Petitioner;
(n) The Petitioner be granted cost of the Petition;
(o) The Court be pleased to issue any other order it deems fit in the circumstances of the case.”
2. I then summarized the contents of the Affidavit filed in support of the Petition as follows:
“3. The Petition is supported by the Supporting Affidavit sworn by one Ashok Madala who described himself as a Director and Shareholder of the Petitioner. He deponed that the Petitioner has let a Go-Down from the 1 st Respondent within Eldoret at a monthly rent of Kshs 240,000/- that is presently paid into a joint account held by the Advocates of the Landlord and the Petitioner, respectively at ABC Bank, the Petitioner has been diligently paying rent since the year 2016 by cheques until the year 2023 when the 1 st Respondent instructed the Petitioner to pay Kshs 80,000/- via cheque drawn in his favour and Kshs 160,000/- via Mpesa to mobile number owed by one Khadija Mohib Teherali. He deponed further that in or about the year 2022, the Landlord stopped issuing invoices with ETR Receipts despite the Petitioner’s requests, and which are necessary to enable the Petitioner file necessary tax returns.
4. He deponed further that in November 2023, given the impasse regarding the issuance of ETRs, the Petitioner decided to withhold the payment of Kshs 160,000/- that was being paid via mobile money until issuance of the ETR Receipts, that the 1 st Respondent, in response, instead of issuing the ETR Receipts as required by law, procured the services of the 2 nd Respondent (Auctioneers) who duly proceeded to proclaim the Petitioner’s assets in an attempt to distrain for rent. He deponed that the Petitioner moved to the Business Premises Rent Tribunal and filed the Eldoret Reference No. E012 of 2024 against the 1 st Respondent, which was concluded vide the Ruling delivered on 29/08/2024 which, inter alia, prohibited the 1 st Respondent/Landlord from distraining for rent and ordered that the ETR Receipts be issued to the Petitioner.
5. He deponed further that during the subsistence of the Reference before the said Tribunal and while rent was being paid to the joint account as per order of the Tribunal, the 1 st Respondent instructed the 2 nd Respondent to impound and cart away the Petitioner’s property. He claimed that at the time of the Proclamation, there was an order that the Petitioner was entitled to quiet possession of the premises and no rent was owing as it had been duly paid into the joint account as ordered by the Tribunal.
6. He contended that the right to distress for rent does not exist in Kenya following the abolition of the common law right to distrain for rent in England by the provisions of Section 71 of the Tribunals, Courts and Enforcement Act as at 19/03/2014, that the 1 st Respondent, in carting away the said property in alleged distrain for rent acted illegally and violated the Petitioner’s constitutional rights to equality and freedom from discrimination, human dignity, privacy, property, consumer rights and access to justice, and that without a statutory basis for the right to distrain for rent, the actions of the 1 st Respondent were a nullity and their curtailment of the Petitioner’s rights was without legal basis. He deponed further that even if such a right to distress was deemed to exist, the fact that rent had been duly paid to the joint account meant that there was no rent owing upon which the right to distress could arise particularly when regard was had to the order of the Tribunal stipulating the Petitioner’s quiet possession of the premises, and that the actions of the 1 st Respondent to refuse to issue the ETR invoices as and when rent fell due was contrary to the provisions of the Value Added Tax, 2013 and a violation of the Petitioner’s consumer rights and right to human dignity.
7. He further contended that it is necessary that the 1 st Respondent do account for VAT for the period February 2022 to date, and that the rent being collected in the account held at ABC Bank should be utilized for the purpose of settling outstanding tax arrears. He averred that as a result of the detention of the Petitioner’s motor vehicles by the Respondents, the Petitioner was forced to procure transport services from third parties and whose cost has to date risen to the sum of Kshs 957,280/-. In conclusion, he deponed that the actions of the Respondent have severely affected the Petitioner’s operations and given the grievous nature of the violations of the Petitioner’s rights, it is imperative that the Court grants the Petitioner damages.”
3. I also set out contents of the said Preliminary Objection filed by the 1 st Respondent, dated 11/01/2025, and filed through Messrs Kariuki Mwaniki & Co. Advocates . By the consent of the parties, the Preliminary Objection was dealt with first, as already pointed out above. I set out the contents of the Preliminary Objection as follows
“i) The Petition fails to disclose with precision and particularity any constitutional violations by the Respondents. No material or fact disclosing a violation denial or infringement of a fundamental right as envisaged under the Constitution of Kenya, 2010 is contained in the Petition.
ii) The reliefs sought, that is, mandatory injunction and compensation are of a commercial nature obtained under civil law and not a Constitutional Petition.
iii) The Petition offends the doctrine of ripeness and constitutional avoidance.
iv) The issues raised are res-judicata having been raised and determined at the Business Premises Rent Tribunal.
v) The Petition acts like an appeal against the decision of the Business Premises Rent Tribunal.”
4. To put the matter in full context, I also set out the orders I made in my said Ruling dated 28/03/2025, as follows:
“46. In premises, I order and rule as follows:
“i) I find that the Petition herein, to the acceptable standards, discloses with precision and particularity the constitutional violations or infringements alleged therein.
ii) The Petitioner, being a limited liability company, I find nothing that would exclude, or bar it, from enjoying the nature of the constitutional rights alleged to have been infringed or violated herein, namely, right to privacy, right to property, consumer rights, right to access to justice, right to equality, and freedom against discrimination.
iii) The rest of the issues raised in the 1 st Respondent’s Notice of the Preliminary Objection dated 11/01/2025 will however only be determined upon full hearing of the Petition as they would require consideration of rival factual matters.
iv) However, before the Petition is heard, the parties will first be given the opportunity to address the Court on whther this action should be retained in this Court for hearing and determination, or whether it should be transferred to the Environment and Land Court.
v) Costs shall be in the Cause.”
5. Regarding the issue whether this matter should be transferred to the Environment and Land Court (ELC), Mr. Michuki, Counsel for the Petitioner, informed me subsequently, that the issue does not arise because this matter had initially indeed been filed at the ELC as Nairobi ELC Petition No. E083 of 2024 , but was struck out by way of the Ruling delivered by Ogutu-Mboya J . I directed Counsel to supply the Court with a copy of the Ruling but he does not seem to have so complied as I have not come across the copy. I have however, on my own, conducted a search in the Kenya Law Reports portal and indeed, I have come across such Ruling delivered by the Judge on 31/12/2024. The issue whether this matter should have been filed at the ELC is now therefore laid to rest.
6. Having set out the above, the Preliminary Objection having now been dealt with, and the parties having agreed that the Court now deals with the Petition and renders one Judgment that will subsume all other matters arising, including giving directions on payment of the Auctioneer’s costs arising from the distress for rent levied, I will now recount the responses filed against the Petition.
1 st Respondent’s Replying Affidavit
7. The 1 st Respondent, Mohib Teherali Abdul Hussein , relied on the Replying Affidavit he swore on 11/01/2025, filed through Messrs Kariuki Mwaniki & Co. Advocates .
8. He deponed that the Petition and the facts therein are similar to what was canvassed in Business Premises Rent Tribunal in Eldoret BPRT Case No. E012 of 2024 between the same parties, a determination made and no Appeal preferred. According to him therefore, the Petition is an Appeal against determination of the BPRT . He deponed further that the BPRT ordered that the rent arrears which amounted to Kshs 800,000/- be deposited in a joint escrow account within 7 days pending determination of rent owing and parties exchange of statement of accounts in 14 days, and ETR ( Electronic Tax Register ) Receipts. He urged further that thereafter on 3/04/2024, a consent was adopted that the amount in the joint account be released to the Landlord who was to issue ETR Receipts upon payment of rent in cleared funds within 5 days. He added that the BPRT rendered its determination on 29/08/2024 whereof it allowed both parties’ respective Applications partially, to the effect that the consent order dated 3/04/2024 was set aside, the Landlord was repossessed from levying distress for rent, the rent arrears in the escrow account was ordered to be released to the Landlord who was to, within 7 days, issue ETR Receipts, failure upon which the Tenant would be at liberty to withhold further rent payment and apply for further directions, and that lastly, each party was to bear his own costs. He denied any knowledge of the allegation that the 3 rd Respondent carted away a motor vehicle and goods belonging to the Petitioner, however after the said Ruling delivered on 29/08/2024, he asked the Petitioner to collect whatever property the Auctioneer had and to settle the storage charges. He also denied that any order existed requiring quite possession however the failure by the Petitioner to pay rent as directed by the BPRT means that the Petitioner was in contempt of the said orders and the 1 st Respondent therefore had a right to levy distress, which right under the Distress for Rent Act, Cap. 293 , is not unconstitutional.
9. He reiterated that if the Petitioner were aggrieved by the decision of the BPRT , then his recourse was to file an appeal, otherwise the issues raised herein are Res Judicata . He contended further that after the said Ruling of the BPRT , the Petitioner filed an Application seeking release of the motor vehicle and other goods held by the Auctioneer, which prayers are similar to those now being sought in the instant Petition, and which Application was dismissed for want of prosecution, and that it is surprising that more than 2 years later, the Petitioner decided to file the present Petition in the same issues which were at the BPRT . He urged further that the Petitioner, notwithstanding being a company has camouflaged these issues which were addressed by the BPRT to be constitutional issues of human rights which however belong only to individual humans, and not a company such as the Petitioner. He asserted that what is contained in the Petition is a commercial dispute which is the purview of a Civil Court, and also that the Petition does not disclose with precision and particularity, the alleged constitutional violations. He also denied that he had declined to issue ETR Receipts and claimed that he in fact issued one deposited in the joint escrow account. He also pointed out that no tax demand from the Interested Party, Kenya Revenue Authority ( KRA ), has been exhibited to demonstrate that the Petition is genuine and has not been simply filed to deny the 1 st Respondent his rent. In the end, he implored the Court to invoke the doctrine of “ ripeness ” and “ constitutional avoidance ” to ensure that the constitutional jurisdiction of the Court is not misused.
3 rd Respondent’s Grounds of Opposition
10. On its part, the 3 rd Respondent, Attorney General , through Principal State Counsel , Winnie Cheruiyot , filed the Grounds of Opposition dated 16/09/2025. Counsel denied that Section 3 of the Distress for Rent Act is in violation of Article 24 of the Constitution , or the various constitutional rights alleged in the Petition. She pointed out that there is a general presumption that that statutes are constitutional and it is the onus of the Petitioner to establish that the Act is unconstitutional. She also asserted that Section 3 of the Distress for Rent Act stipulates that the right to distress for rent is subject to the Act and any other laws, and that therefore, as such, it is not only the common law that gives it life. She also asserted that Landlords have a right to enjoy their property under Article 40 of the Constitution and as such, that right extends to the right to enjoy rental income therefrom, and thus the right to distrain for rent.
Interlocutory Consent Orders recorded
11. I may also state that two Interlocutory Applications were settled by way of the consent dated 4/01/2025 whereof it was basically agreed that the rent arrears held in the escrow account be released to the 1 st Respondent as Landlord, and in exchange, the Auctioneer, 1 st Respondent, do release the distrained goods to the Petitioner upon the Petitioner settling the storage fees of Kshs 210,000/-. It was also agreed that payment of the Auctioneer’s costs do await final determination of the Petition, and that if the Petitioner is successful, then the 1 st Respondent shall refund the storage fees paid by the Petitioner.
Written Submissions
12. I then gave the parties leave to file written Submissions. However, only the Petitioners filed the Submissions dated 17/10/2025, while the 1 st Respondent’s and the 3 rd Respondent’s, both filed respective Submissions dated 15/02/2025. I have not come across any response or Submissions filed by the Interested Party, Kenya Revenue Authority ( KRA ), although Ms. Nyakundi , its Counsel, appeared in several Court sessions and informed the Court that she will not be participating in the matter as the dispute does not concern the Interested Party.
Petitioner’s Submissions
13. Mr. Michuki , the Petitioner’s Counsel submitted that the Distress for Rent Act is a colonial statute that imported to Kenya the common law right to distress as it existed in England, which right no longer exists as it was abolished under Section 7 1 of the English Tribunals, Courts and Enforcement Act, 2007 , which Act came into effect in April 2014. He urged that corresponding abolishment is a matter of implication, and cited several authorities. He contended that a law that permits landlords to seize goods without judicial oversight violates the right to property under Article 40 of the Constitution , right to fair administrative action under Article 47 , and right to consumer rights under Article 46 . He urged further that even if the 1 st Respondent had a right to distrain, that right had not accrued since at the time that it was exercised the Petitioner had complied with the BPRT’s orders to deposit funds into a joint account. The rest of the matters he submitted are restatements of those already recounted.
1 st Respondent’s Submissions
14. The 1 st Respondent’s Counsel, Mr. Kariuki Mwaniki , began by submitting that the Ruling delivered herein in respect to the Preliminary Objection has fortified the points of law that had been raised by the 1 st Respondent. He thus reiterated the contention that this Court lacks jurisdiction to entertain this Petition since just as a Court cannot assume jurisdiction not granted by law, a Kenyan statute cannot also be invalidated by legal developments in a foreign jurisdiction. He also contended that the Ruling affirmed the 1 st Respondent’s contention that the dispute herein is a commercial landlord-tenant matter, not a constitutional dispute, which is not a first-resort mechanism for settling private contractual disputes. He also reiterated that the parties herein had already availed themselves of statutory tribunals ( BPRT ) and most conclusively entered into a binding consent order that effectively resoled the underlying debt. According to him therefore, the Petition represents an unwarranted attempt to use constitutional litigation as a collateral appeal from a settled outcome. He also submitted that the Ruling affirmed the observation that the Petition fails to demonstrate with precision any alleged violation of the Constitution as set out in the Anarita Karimi Njeru v R case . Counsel submitted further that by complying with the initial requirements of the consent order recorded at the BPRT , whereof the Petitioner released the first batch of funds, the Petitioner’s conduct constituted an unequivocal admission of the debt due and now acts as an estoppel against the Petitioner’s current denial of the debt. He thus submitted that any complications that may have arisen subsequently, are a direct result of the Petitioner’s failure to fully comply with the consent order. Regarding the Petitioner’s contention that the Distress for Rent Act is no longer applicable in Kenya, Counsel termed that contention as a profound legal fallacy that fundamentally misconceives the doctrine of received law and constitutes a direct attack on the sovereignty of Parliament, considering that the Reception Clause in Section 3(1)(c) of the Judicate Act was a one-time historical event and as such, the Distress for Rent Act , having been incorporated and subsequently enacted, domesticated and amended by the Kenyan Parliament is now a purely domestic law in respect to which any subsequent legislative change, amendment, or outright repeal in its country of origin has absolutely no legal effect, validity or applicability. He cited Article 94 of the Constitution.
15. He stated further that in any event, Section 3(1) of the Distress for Rent Act is clear that the Act derives its validity from the historic common law only to the extent preserved by Kenyan statute. On affirmation by Kenyan Courts that the Distress for Rent Act is valid in Kenya, he cited the case of Omondi v Kassam & Another (Civil Appeal E018 of 2024 ). He then echoed the Attorney General’s contention that there is a general presumption that statutes are constitutional, and it is thus the onus of the Petitioner to establish that the Act is unconstitutional, which onus, according to him, the Petitioner has not discharged. He, too, tied the Landlord’s right to distress for rent to the Landlord’s right under Article 40 of the Constitution to property and to enjoy his rental income. Counsel submitted that further that further proof that the Act has its own subsisting validity and operational framework is the fact that at Section 15 , it contains its own in-built remedy mechanisms in instances where distress for rent has been unlawfully or irregularly levied, and which remedy is limited to a claim for damages. In response to the allegation that the right to distress for rent had not yet accrued, Counsel reiterated that by authorizing release of the escrowed funds as stipulated in the consent order recorded at the BPRT , the Petitioner admitted that those funds constituted outstanding rent due and is now estopped from denying such accrual of rent arrears. He cited the case of Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR , and submitted that the Petitioner cannot approbate and reprobate. He also criticized the Petitioner’s attempt to rely on an alleged VAT (Value Added Tax)/ETR dispute to justify non-payment of rent urging that there exists no statutory provision subordinating the Landlord’s right to distress for rent to compliance with tax documentation, the two being independent covenants. He submitted further that even if any irregularities in the process of distress were to be demonstrated, any grievances arising therefrom ought to be directed to the Auctioneer who is independent, and for whose acts the Landlord is not vicariously liable. The rest of the matters he submitted are also basically repetitions of matters already recounted.
3 rd Respondent’s Submissions
16. For the 3 rd Respondent (the Attorney General) , State Counsel Ms. Cheruiyot , too, refuted the contention that the Distress for Rent Act is no longer applicable in Kenya because of repeal of the Distress for Rent Act of England. She raised arguments more or less similar to those raised by the 1 st Respondent. She, too, submitted that the Kenyan Act can only be repealed by the Kenyan Parliament, and contended that the Petitioner has a right, under the provisions of Article 119 of the Constitution to petition Parliament to re-look at the Act. She, too, submitted that the Petition offends the doctrine of “ ripeness ” which dictates that a party ought to demonstrate that there is imminent danger, and not just an illusion if the Court’s intervention is sought. He cited the case of Katiba Institute & 4 Others v Attorney General & 3 Others: Inuka Kenya ni Sisi & Another (Interested Parties) (Petition E234 of 2025 [2025] KEHC 12779 (KLR) (Constitutional and Human Rights) (18 September 2025) (Ruling ). She again cited the provisions of Section 3(1) of the Distress for Rent Act , which, she reiterated, subjected the Distress for Rent Act to other written laws, which according to her, includes the Constitution , and statutes such as the Auctioneers Act , the Fair Administrative Actions Act , and the Law of Contracts , among others. She urged the Court to uphold the spirit of separation of powers and let Parliament have the chance to undertake legislative procedure on the Act . Counsel also submitted that under the provisions of Article 156 of the Constitution and the Office of the Attorney General Act , the role of the 3 rd Respondent does not include repealing, enacting or amending of statutes, and as such, it is Parliament that ought to have been sued, and given a hearing as required under the rules of natural justice enshrined in Article 47 of the Constitution . According to her therefore, the failure to join Parliament in this matter is fatal to the Petition.
Determination
17. The issues that arise for determination in this matter, include some of those that were placed before me as points of Preliminary Objection, some which I dealt with but which have again found their way back, and some which I deferred for determination after full hearing. At the moment therefore, I can summarize the issues as follows:
i) Whether the issues raised in the Petition are Res Judicata having been determined the Business Premises Tribunal.
ii) Whether the Petition is therefore an Appeal in disguise.
iii) Whether the Petition offends the doctrine of ripeness and constitutional avoidance.
iv) Whether the failure to join Parliament in this Petition is fatal to the Petition.
v) Whether the Petitioner, being a limited liability company, can enjoy or claim the nature of constitutional rights alleged to have been infringed herein.
vi) Whether the reliefs sought in the Petitioner are civil in nature, and thus not constitutional.
vii) Whether the Petition discloses with precision and particularity the constitutional violations alleged.
viii) Whether the Kenyan Distress for Rent Act is no longer applicable in Kenya owing to repeal in England of the similar statute from which the Kenyan Act was adopted.
ix) Which party should pay the Auctioneer’s costs arising from the distress for rent levied?
18. As far as the facts of this case are concerned, the first 3 issues are closely intertwined and I will deal with them together.
19. In my said Ruling delivered on 28/03/2025, while dealing with the issue whether the Petition offends the doctrine of “ ripeness ” and “ constitutional avoidance ”, I cited the case of Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR in which the Supreme Court remarked as follows:
“[105]. We shall now turn to the Constitutional-Avoidance Doctrine. The doctrine is at times referred to as the Constitutional-Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as:
“The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion”
20. I also cited the case of KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022) (Ruling) , in which Mativo J (as he then was) , also made the following comments:
“32. The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In that regard, the Supreme Court stated in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 others (at para 256) that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis. In the South African case of S v Mhlungu (supra) Kentridge AJ, stated in the dissenting opinion respecting the principle of avoidance (at paragraph 59), that he would lay down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed …………………..”
21. Another statement I cited was that made by Lenaola J (as he then was ), in the case of Uhuru Muigai Kenyatta vs Nairobi Star Publication Limited (2013) eKLR that:
“Where there is a remedy in civil law, a party should pursue that remedy and I say so well aware of the decision of Haco Industries where the converse may have been expressed as the position. My mind is clear however that not every ill in the society should attract a constitutional sanction as stated in AG v Dutambala Criminal Appeal No 37 of 1991 (Tanzania Court of Appeal) such sanctions should be reserved for appropriate and really serious occasions …”
22. I then remarked that the doctrine of “ constitutional avoidance ” does not absolve the Court of its authority to consider and rule on constitutional Petitions. It only prohibits the Court from hearing and making a decision when there is another suitable forum that is capable of doing so.
23. Regarding the issue whether the matters raised in the Petition are Res judicata having been determine
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“2. The background of the matter is that the Petitioner vide the Petition dated 3/12/2024 and filed on 6/12/2024 through Messrs K. Michuki Law Advocates, sought the following lengthy list of prayers:
(a) A declaration that the right to distress for rent ceased to exist or accrue in Kenya on 19 th March, 2014 upon commencement of Section 71 of the English Tribunals, Courts and Enforcement Act 2007;
(b) A declaration that the Distress for Rent Act is invalid in so far as it lacks a foundational basis following the repeal of the common law right to distress for rent in England;
(c) A declaration that the Distress for Rent Act is invalid in so far as it denies, violates, infringes and threatens a tenant’s rights to; (i) equality and freedom from discrimination, (ii) human dignity, (iii) privacy, (iv) property, (v) consumer rights, and (vi) access justice
(d) A declaration that impounding and carting away of the Petitioner’s assets by the Respondents was a violation to its rights to; (i) equality and freedom from discrimination, (ii) human dignity, (iii) privacy, (iv) property, (v) consumer rights, and (vi) access justice;
(e) A declaration that the impounding and carting away of the Petitioner’s assets by the Respondents was null and void ab initio;
(f) A mandatory injunction does issue directing the Respondents to immediately release to the Petitioner; (i) motor vehicle registration number KCH 130B, (ii)motor vehicle registration number KCJ 036T, (iii) 71 containers of 20 litres cooking oil and (iv) goods being ferried in the motor vehicle registration number KCJ 036T worth Kshs.164,435/;
(g) The Court be pleased to grant compensation in the sum of Kenya Shillings Nine Hundred and Fifty-Seven Two Hundred and Eighty Shillings (Kshs. 957,280/-) for hire of transport;
(h) The Court be pleased to grant interest on (g) above from the date of filing the suit till payment in full;
(i) Further to (b) the Court be pleased to grant the Petitioner general, constitutional and aggravated damages for the impounding of its assets;
(j) A declaration that under the provision of the Value Added Tax Act, 2013, a tax invoice for commercial rent must be issued at the time of the taxable supply, namely; the issuance of the rent invoice;
(k) A declaration that the 1 st Respondent violated the Petitioner’s rights to; (i) human dignity, (ii) property and (iii) consumer rights by failing to issue it with tax invoices for the period February, 2022 to date;
(l) Further to (g) the Petitioner be granted general, constitutional and aggravated damages for the violation of its rights
(m) A declaration that monies currently held in ABC bank account no. 007243001000793 as rent be utilized, upon payment of the current value added tax, to pay any outstanding value added tax arrears owed to the interested party in relation to rent paid for the period February, 2022 to October, 2023 with a tax invoice being issued to the Petitioner;
(n) The Petitioner be granted cost of the Petition;
(o) The Court be pleased to issue any other order it deems fit in the circumstances of the case.”
2. I then summarized the contents of the Affidavit filed in support of the Petition as follows:
“3. The Petition is supported by the Supporting Affidavit sworn by one Ashok Madala who described himself as a Director and Shareholder of the Petitioner. He deponed that the Petitioner has let a Go-Down from the 1 st Respondent within Eldoret at a monthly rent of Kshs 240,000/- that is presently paid into a joint account held by the Advocates of the Landlord and the Petitioner, respectively at ABC Bank, the Petitioner has been diligently paying rent since the year 2016 by cheques until the year 2023 when the 1 st Respondent instructed the Petitioner to pay Kshs 80,000/- via cheque drawn in his favour and Kshs 160,000/- via Mpesa to mobile number owed by one Khadija Mohib Teherali. He deponed further that in or about the year 2022, the Landlord stopped issuing invoices with ETR Receipts despite the Petitioner’s requests, and which are necessary to enable the Petitioner file necessary tax returns.
4. He deponed further that in November 2023, given the impasse regarding the issuance of ETRs, the Petitioner decided to withhold the payment of Kshs 160,000/- that was being paid via mobile money until issuance of the ETR Receipts, that the 1 st Respondent, in response, instead of issuing the ETR Receipts as required by law, procured the services of the 2 nd Respondent (Auctioneers) who duly proceeded to proclaim the Petitioner’s assets in an attempt to distrain for rent. He deponed that the Petitioner moved to the Business Premises Rent Tribunal and filed the Eldoret Reference No. E012 of 2024 against the 1 st Respondent, which was concluded vide the Ruling delivered on 29/08/2024 which, inter alia, prohibited the 1 st Respondent/Landlord from distraining for rent and ordered that the ETR Receipts be issued to the Petitioner.
5. He deponed further that during the subsistence of the Reference before the said Tribunal and while rent was being paid to the joint account as per order of the Tribunal, the 1 st Respondent instructed the 2 nd Respondent to impound and cart away the Petitioner’s property. He claimed that at the time of the Proclamation, there was an order that the Petitioner was entitled to quiet possession of the premises and no rent was owing as it had been duly paid into the joint account as ordered by the Tribunal.
6. He contended that the right to distress for rent does not exist in Kenya following the abolition of the common law right to distrain for rent in England by the provisions of Section 71 of the Tribunals, Courts and Enforcement Act as at 19/03/2014, that the 1 st Respondent, in carting away the said property in alleged distrain for rent acted illegally and violated the Petitioner’s constitutional rights to equality and freedom from discrimination, human dignity, privacy, property, consumer rights and access to justice, and that without a statutory basis for the right to distrain for rent, the actions of the 1 st Respondent were a nullity and their curtailment of the Petitioner’s rights was without legal basis. He deponed further that even if such a right to distress was deemed to exist, the fact that rent had been duly paid to the joint account meant that there was no rent owing upon which the right to distress could arise particularly when regard was had to the order of the Tribunal stipulating the Petitioner’s quiet possession of the premises, and that the actions of the 1 st Respondent to refuse to issue the ETR invoices as and when rent fell due was contrary to the provisions of the Value Added Tax, 2013 and a violation of the Petitioner’s consumer rights and right to human dignity.
7. He further contended that it is necessary that the 1 st Respondent do account for VAT for the period February 2022 to date, and that the rent being collected in the account held at ABC Bank should be utilized for the purpose of settling outstanding tax arrears. He averred that as a result of the detention of the Petitioner’s motor vehicles by the Respondents, the Petitioner was forced to procure transport services from third parties and whose cost has to date risen to the sum of Kshs 957,280/-. In conclusion, he deponed that the actions of the Respondent have severely affected the Petitioner’s operations and given the grievous nature of the violations of the Petitioner’s rights, it is imperative that the Court grants the Petitioner damages.”
3. I also set out contents of the said Preliminary Objection filed by the 1 st Respondent, dated 11/01/2025, and filed through Messrs Kariuki Mwaniki & Co. Advocates . By the consent of the parties, the Preliminary Objection was dealt with first, as already pointed out above. I set out the contents of the Preliminary Objection as follows
“i) The Petition fails to disclose with precision and particularity any constitutional violations by the Respondents. No material or fact disclosing a violation denial or infringement of a fundamental right as envisaged under the Constitution of Kenya, 2010 is contained in the Petition.
ii) The reliefs sought, that is, mandatory injunction and compensation are of a commercial nature obtained under civil law and not a Constitutional Petition.
iii) The Petition offends the doctrine of ripeness and constitutional avoidance.
iv) The issues raised are res-judicata having been raised and determined at the Business Premises Rent Tribunal.
v) The Petition acts like an appeal against the decision of the Business Premises Rent Tribunal.”
4. To put the matter in full context, I also set out the orders I made in my said Ruling dated 28/03/2025, as follows:
“46. In premises, I order and rule as follows:
“i) I find that the Petition herein, to the acceptable standards, discloses with precision and particularity the constitutional violations or infringements alleged therein.
ii) The Petitioner, being a limited liability company, I find nothing that would exclude, or bar it, from enjoying the nature of the constitutional rights alleged to have been infringed or violated herein, namely, right to privacy, right to property, consumer rights, right to access to justice, right to equality, and freedom against discrimination.
iii) The rest of the issues raised in the 1 st Respondent’s Notice of the Preliminary Objection dated 11/01/2025 will however only be determined upon full hearing of the Petition as they would require consideration of rival factual matters.
iv) However, before the Petition is heard, the parties will first be given the opportunity to address the Court on whther this action should be retained in this Court for hearing and determination, or whether it should be transferred to the Environment and Land Court.
v) Costs shall be in the Cause.”
5. Regarding the issue whether this matter should be transferred to the Environment and Land Court (ELC), Mr. Michuki, Counsel for the Petitioner, informed me subsequently, that the issue does not arise because this matter had initially indeed been filed at the ELC as Nairobi ELC Petition No. E083 of 2024 , but was struck out by way of the Ruling delivered by Ogutu-Mboya J . I directed Counsel to supply the Court with a copy of the Ruling but he does not seem to have so complied as I have not come across the copy. I have however, on my own, conducted a search in the Kenya Law Reports portal and indeed, I have come across such Ruling delivered by the Judge on 31/12/2024. The issue whether this matter should have been filed at the ELC is now therefore laid to rest.
6. Having set out the above, the Preliminary Objection having now been dealt with, and the parties having agreed that the Court now deals with the Petition and renders one Judgment that will subsume all other matters arising, including giving directions on payment of the Auctioneer’s costs arising from the distress for rent levied, I will now recount the responses filed against the Petition.
1 st Respondent’s Replying Affidavit
7. The 1 st Respondent, Mohib Teherali Abdul Hussein , relied on the Replying Affidavit he swore on 11/01/2025, filed through Messrs Kariuki Mwaniki & Co. Advocates .
8. He deponed that the Petition and the facts therein are similar to what was canvassed in Business Premises Rent Tribunal in Eldoret BPRT Case No. E012 of 2024 between the same parties, a determination made and no Appeal preferred. According to him therefore, the Petition is an Appeal against determination of the BPRT . He deponed further that the BPRT ordered that the rent arrears which amounted to Kshs 800,000/- be deposited in a joint escrow account within 7 days pending determination of rent owing and parties exchange of statement of accounts in 14 days, and ETR ( Electronic Tax Register ) Receipts. He urged further that thereafter on 3/04/2024, a consent was adopted that the amount in the joint account be released to the Landlord who was to issue ETR Receipts upon payment of rent in cleared funds within 5 days. He added that the BPRT rendered its determination on 29/08/2024 whereof it allowed both parties’ respective Applications partially, to the effect that the consent order dated 3/04/2024 was set aside, the Landlord was repossessed from levying distress for rent, the rent arrears in the escrow account was ordered to be released to the Landlord who was to, within 7 days, issue ETR Receipts, failure upon which the Tenant would be at liberty to withhold further rent payment and apply for further directions, and that lastly, each party was to bear his own costs. He denied any knowledge of the allegation that the 3 rd Respondent carted away a motor vehicle and goods belonging to the Petitioner, however after the said Ruling delivered on 29/08/2024, he asked the Petitioner to collect whatever property the Auctioneer had and to settle the storage charges. He also denied that any order existed requiring quite possession however the failure by the Petitioner to pay rent as directed by the BPRT means that the Petitioner was in contempt of the said orders and the 1 st Respondent therefore had a right to levy distress, which right under the Distress for Rent Act, Cap. 293 , is not unconstitutional.
9. He reiterated that if the Petitioner were aggrieved by the decision of the BPRT , then his recourse was to file an appeal, otherwise the issues raised herein are Res Judicata . He contended further that after the said Ruling of the BPRT , the Petitioner filed an Application seeking release of the motor vehicle and other goods held by the Auctioneer, which prayers are similar to those now being sought in the instant Petition, and which Application was dismissed for want of prosecution, and that it is surprising that more than 2 years later, the Petitioner decided to file the present Petition in the same issues which were at the BPRT . He urged further that the Petitioner, notwithstanding being a company has camouflaged these issues which were addressed by the BPRT to be constitutional issues of human rights which however belong only to individual humans, and not a company such as the Petitioner. He asserted that what is contained in the Petition is a commercial dispute which is the purview of a Civil Court, and also that the Petition does not disclose with precision and particularity, the alleged constitutional violations. He also denied that he had declined to issue ETR Receipts and claimed that he in fact issued one deposited in the joint escrow account. He also pointed out that no tax demand from the Interested Party, Kenya Revenue Authority ( KRA ), has been exhibited to demonstrate that the Petition is genuine and has not been simply filed to deny the 1 st Respondent his rent. In the end, he implored the Court to invoke the doctrine of “ ripeness ” and “ constitutional avoidance ” to ensure that the constitutional jurisdiction of the Court is not misused.
3 rd Respondent’s Grounds of Opposition
10. On its part, the 3 rd Respondent, Attorney General , through Principal State Counsel , Winnie Cheruiyot , filed the Grounds of Opposition dated 16/09/2025. Counsel denied that Section 3 of the Distress for Rent Act is in violation of Article 24 of the Constitution , or the various constitutional rights alleged in the Petition. She pointed out that there is a general presumption that that statutes are constitutional and it is the onus of the Petitioner to establish that the Act is unconstitutional. She also asserted that Section 3 of the Distress for Rent Act stipulates that the right to distress for rent is subject to the Act and any other laws, and that therefore, as such, it is not only the common law that gives it life. She also asserted that Landlords have a right to enjoy their property under Article 40 of the Constitution and as such, that right extends to the right to enjoy rental income therefrom, and thus the right to distrain for rent.
Interlocutory Consent Orders recorded
11. I may also state that two Interlocutory Applications were settled by way of the consent dated 4/01/2025 whereof it was basically agreed that the rent arrears held in the escrow account be released to the 1 st Respondent as Landlord, and in exchange, the Auctioneer, 1 st Respondent, do release the distrained goods to the Petitioner upon the Petitioner settling the storage fees of Kshs 210,000/-. It was also agreed that payment of the Auctioneer’s costs do await final determination of the Petition, and that if the Petitioner is successful, then the 1 st Respondent shall refund the storage fees paid by the Petitioner.
Written Submissions
12. I then gave the parties leave to file written Submissions. However, only the Petitioners filed the Submissions dated 17/10/2025, while the 1 st Respondent’s and the 3 rd Respondent’s, both filed respective Submissions dated 15/02/2025. I have not come across any response or Submissions filed by the Interested Party, Kenya Revenue Authority ( KRA ), although Ms. Nyakundi , its Counsel, appeared in several Court sessions and informed the Court that she will not be participating in the matter as the dispute does not concern the Interested Party.
Petitioner’s Submissions
13. Mr. Michuki , the Petitioner’s Counsel submitted that the Distress for Rent Act is a colonial statute that imported to Kenya the common law right to distress as it existed in England, which right no longer exists as it was abolished under Section 7 1 of the English Tribunals, Courts and Enforcement Act, 2007 , which Act came into effect in April 2014. He urged that corresponding abolishment is a matter of implication, and cited several authorities. He contended that a law that permits landlords to seize goods without judicial oversight violates the right to property under Article 40 of the Constitution , right to fair administrative action under Article 47 , and right to consumer rights under Article 46 . He urged further that even if the 1 st Respondent had a right to distrain, that right had not accrued since at the time that it was exercised the Petitioner had complied with the BPRT’s orders to deposit funds into a joint account. The rest of the matters he submitted are restatements of those already recounted.
1 st Respondent’s Submissions
14. The 1 st Respondent’s Counsel, Mr. Kariuki Mwaniki , began by submitting that the Ruling delivered herein in respect to the Preliminary Objection has fortified the points of law that had been raised by the 1 st Respondent. He thus reiterated the contention that this Court lacks jurisdiction to entertain this Petition since just as a Court cannot assume jurisdiction not granted by law, a Kenyan statute cannot also be invalidated by legal developments in a foreign jurisdiction. He also contended that the Ruling affirmed the 1 st Respondent’s contention that the dispute herein is a commercial landlord-tenant matter, not a constitutional dispute, which is not a first-resort mechanism for settling private contractual disputes. He also reiterated that the parties herein had already availed themselves of statutory tribunals ( BPRT ) and most conclusively entered into a binding consent order that effectively resoled the underlying debt. According to him therefore, the Petition represents an unwarranted attempt to use constitutional litigation as a collateral appeal from a settled outcome. He also submitted that the Ruling affirmed the observation that the Petition fails to demonstrate with precision any alleged violation of the Constitution as set out in the Anarita Karimi Njeru v R case . Counsel submitted further that by complying with the initial requirements of the consent order recorded at the BPRT , whereof the Petitioner released the first batch of funds, the Petitioner’s conduct constituted an unequivocal admission of the debt due and now acts as an estoppel against the Petitioner’s current denial of the debt. He thus submitted that any complications that may have arisen subsequently, are a direct result of the Petitioner’s failure to fully comply with the consent order. Regarding the Petitioner’s contention that the Distress for Rent Act is no longer applicable in Kenya, Counsel termed that contention as a profound legal fallacy that fundamentally misconceives the doctrine of received law and constitutes a direct attack on the sovereignty of Parliament, considering that the Reception Clause in Section 3(1)(c) of the Judicate Act was a one-time historical event and as such, the Distress for Rent Act , having been incorporated and subsequently enacted, domesticated and amended by the Kenyan Parliament is now a purely domestic law in respect to which any subsequent legislative change, amendment, or outright repeal in its country of origin has absolutely no legal effect, validity or applicability. He cited Article 94 of the Constitution.
15. He stated further that in any event, Section 3(1) of the Distress for Rent Act is clear that the Act derives its validity from the historic common law only to the extent preserved by Kenyan statute. On affirmation by Kenyan Courts that the Distress for Rent Act is valid in Kenya, he cited the case of Omondi v Kassam & Another (Civil Appeal E018 of 2024 ). He then echoed the Attorney General’s contention that there is a general presumption that statutes are constitutional, and it is thus the onus of the Petitioner to establish that the Act is unconstitutional, which onus, according to him, the Petitioner has not discharged. He, too, tied the Landlord’s right to distress for rent to the Landlord’s right under Article 40 of the Constitution to property and to enjoy his rental income. Counsel submitted that further that further proof that the Act has its own subsisting validity and operational framework is the fact that at Section 15 , it contains its own in-built remedy mechanisms in instances where distress for rent has been unlawfully or irregularly levied, and which remedy is limited to a claim for damages. In response to the allegation that the right to distress for rent had not yet accrued, Counsel reiterated that by authorizing release of the escrowed funds as stipulated in the consent order recorded at the BPRT , the Petitioner admitted that those funds constituted outstanding rent due and is now estopped from denying such accrual of rent arrears. He cited the case of Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR , and submitted that the Petitioner cannot approbate and reprobate. He also criticized the Petitioner’s attempt to rely on an alleged VAT (Value Added Tax)/ETR dispute to justify non-payment of rent urging that there exists no statutory provision subordinating the Landlord’s right to distress for rent to compliance with tax documentation, the two being independent covenants. He submitted further that even if any irregularities in the process of distress were to be demonstrated, any grievances arising therefrom ought to be directed to the Auctioneer who is independent, and for whose acts the Landlord is not vicariously liable. The rest of the matters he submitted are also basically repetitions of matters already recounted.
3 rd Respondent’s Submissions
16. For the 3 rd Respondent (the Attorney General) , State Counsel Ms. Cheruiyot , too, refuted the contention that the Distress for Rent Act is no longer applicable in Kenya because of repeal of the Distress for Rent Act of England. She raised arguments more or less similar to those raised by the 1 st Respondent. She, too, submitted that the Kenyan Act can only be repealed by the Kenyan Parliament, and contended that the Petitioner has a right, under the provisions of Article 119 of the Constitution to petition Parliament to re-look at the Act. She, too, submitted that the Petition offends the doctrine of “ ripeness ” which dictates that a party ought to demonstrate that there is imminent danger, and not just an illusion if the Court’s intervention is sought. He cited the case of Katiba Institute & 4 Others v Attorney General & 3 Others: Inuka Kenya ni Sisi & Another (Interested Parties) (Petition E234 of 2025 [2025] KEHC 12779 (KLR) (Constitutional and Human Rights) (18 September 2025) (Ruling ). She again cited the provisions of Section 3(1) of the Distress for Rent Act , which, she reiterated, subjected the Distress for Rent Act to other written laws, which according to her, includes the Constitution , and statutes such as the Auctioneers Act , the Fair Administrative Actions Act , and the Law of Contracts , among others. She urged the Court to uphold the spirit of separation of powers and let Parliament have the chance to undertake legislative procedure on the Act . Counsel also submitted that under the provisions of Article 156 of the Constitution and the Office of the Attorney General Act , the role of the 3 rd Respondent does not include repealing, enacting or amending of statutes, and as such, it is Parliament that ought to have been sued, and given a hearing as required under the rules of natural justice enshrined in Article 47 of the Constitution . According to her therefore, the failure to join Parliament in this matter is fatal to the Petition.
Determination
17. The issues that arise for determination in this matter, include some of those that were placed before me as points of Preliminary Objection, some which I dealt with but which have again found their way back, and some which I deferred for determination after full hearing. At the moment therefore, I can summarize the issues as follows:
i) Whether the issues raised in the Petition are Res Judicata having been determined the Business Premises Tribunal.
ii) Whether the Petition is therefore an Appeal in disguise.
iii) Whether the Petition offends the doctrine of ripeness and constitutional avoidance.
iv) Whether the failure to join Parliament in this Petition is fatal to the Petition.
v) Whether the Petitioner, being a limited liability company, can enjoy or claim the nature of constitutional rights alleged to have been infringed herein.
vi) Whether the reliefs sought in the Petitioner are civil in nature, and thus not constitutional.
vii) Whether the Petition discloses with precision and particularity the constitutional violations alleged.
viii) Whether the Kenyan Distress for Rent Act is no longer applicable in Kenya owing to repeal in England of the similar statute from which the Kenyan Act was adopted.
ix) Which party should pay the Auctioneer’s costs arising from the distress for rent levied?
18. As far as the facts of this case are concerned, the first 3 issues are closely intertwined and I will deal with them together.
19. In my said Ruling delivered on 28/03/2025, while dealing with the issue whether the Petition offends the doctrine of “ ripeness ” and “ constitutional avoidance ”, I cited the case of Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR in which the Supreme Court remarked as follows:
“[105]. We shall now turn to the Constitutional-Avoidance Doctrine. The doctrine is at times referred to as the Constitutional-Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as:
“The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion”
20. I also cited the case of KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022) (Ruling) , in which Mativo J (as he then was) , also made the following comments:
“32. The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In that regard, the Supreme Court stated in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 others (at para 256) that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis. In the South African case of S v Mhlungu (supra) Kentridge AJ, stated in the dissenting opinion respecting the principle of avoidance (at paragraph 59), that he would lay down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed …………………..”
21. Another statement I cited was that made by Lenaola J (as he then was ), in the case of Uhuru Muigai Kenyatta vs Nairobi Star Publication Limited (2013) eKLR that:
“Where there is a remedy in civil law, a party should pursue that remedy and I say so well aware of the decision of Haco Industries where the converse may have been expressed as the position. My mind is clear however that not every ill in the society should attract a constitutional sanction as stated in AG v Dutambala Criminal Appeal No 37 of 1991 (Tanzania Court of Appeal) such sanctions should be reserved for appropriate and really serious occasions …”
22. I then remarked that the doctrine of “ constitutional avoidance ” does not absolve the Court of its authority to consider and rule on constitutional Petitions. It only prohibits the Court from hearing and making a decision when there is another suitable forum that is capable of doing so.
23. Regarding the issue whether the matters raised in the Petition are Res judicata having been determine
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