REVIEW OF THE DISTRESS FOR RENT (BAILIFFS) ACT, CAP.

76

ISSUES PAPER

JUNE 2019
 Table of Contents

1.0 INTRODUCTION ................................................................................................................................. 3

1.2 BACKGROUND AND CONTEXT........................................................................................................... 3

1.3 STATEMENT PROBLEM ...................................................................................................................... 7

1.4 OBJECTIVES ....................................................................................................................................... 9

1.5 JUSTIFICATION .................................................................................................................................. 9

1.6 SCOPE OF THE STUDY...................................................................................................................... 10

1.7 METHODOLOGY .............................................................................................................................. 11

ISSUES FOR CONSIDERATION ...................................................................................................................... 14

2.0 INTRODUCTION ............................................................................................................................... 14

2.1 GAPS IN THE DISTRESS FOR RENT(BAILIFFS)ACT,CAP 76. ............................................................... 14

2.2 CHALLENGES WITH THE IMPLEMENTATION OF THE ACT: .............................................................. 18

2.3 RELEVANCE OF THE DISTRESS FOR RENT (BAILIFFS) ACT.CAP 76 ......................................................... 22

BIBLIOGRAPHY ............................................................................................................................................ 27

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 REVIEW OF THE DISTRESS FOR RENT (BAILIFFS) ACT, CAP 76

CHAPTER ONE

1.0 INTRODUCTION

Uganda Law Reform Commission in exercising its mandate to study and keep under
constant review the Acts and other laws comprising the laws of Uganda with a view to
making recommendations for their systematic improvement, development,
modernization and reform is undertaking a study to review the Distress for Rent (Bailiffs)
Act, Cap. 76. The review is intended to address the gaps and implementation
challenges of the Act, make proposals to guide the administration and process of
recovery of rent arrears by landlords, promote sustainable property investment through
enhancing capacities of tenants and other stakeholders in the operations of renting both
commercial and residential properties in Uganda.

1.2 BACKGROUND AND CONTEXT

‘Distress’ is defined as a summary remedy by which a person is entitled without legal

process to take into his possession the personal chattels of another to behold as to
compel the performance of a duty or the satisfaction of a debt or demand. 1 This was
also stated in a Ugandan case of Yoka Rubber Industries v Diamond Trust
Properties. 2 The right of the landlord to restrain for arrears or rent arises at common
law and need not be expressly reserved. It enables the landlord secure the payment of
rent by seizing goods and chattels found upon the premises in respect of which the rent
or obligations are due.

1 Halsbury’s Law of England 4th Edn. Volume 13 para201 and 202

2 Civil Appeal No.08 of 2013(2017) UGSC 6 (24th April 2017)

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The Concise Law Dictionary further defines ‘distress’ as the act of taking moveable
property out of the possession of a wrongdoer, to compel the performance on an
obligation, or procure satisfaction on an obligation committed. 3

Distress, in law, is the right vested in the landlord as against the tenant in a lease or
tenancy agreement, to seize and sell, such a quantity of the tenant’s chattels on the
land, so as to recover the unpaid rent due under the lease or tenancy. It is a mode of a
legal “self help.”4

The relationship of landlord and tenant, both at the time of the rent falling due and at the
time of the distress being levied, is required for distress to be available as a remedy. 5
This means that a landlord cannot distrain before the relationship of landlord and tenant
is complete, or after the lease has terminated and the relationship is at an end. 6
The rent distrained for must be in arrears (whether payable in advance or in arrears).
The right to distrain for rent entitles a landlord or assignee of the reversion to enter the
premises when rent is in arrears. The distress must occur during the term of the
tenancy. The landlord must retain title, and the tenant must still be in possession of the
premises when the entry occurs. 7

This common law remedy is provided for in Uganda under the Distress for Rent (Bailiffs)
Act 8 and the Distress for Rent (Bailiffs) Rules 9. In the case of Wampewo Service
Station V. Italian Garage (Pizzandi) Ltd 10, Jones J found as follows;

3 The Concise Law Dictionary ; Osborn Sweet and Maxwell 1964 at p.121

4 Magallues Distillers Uganda Ltd and Another Vs. Byansi and Another HCCMA. N0. 9 of 2009

5 Joy Tumushabe & Anor vs M/s Anglo Africa Ltd & Anor SCCA No. 7 of 1999

6 Assist (U) Ltd V Italian Asphalt and Haulage Ltd & Anor HCCS No 1291

7 Yoka Rubber Industries v Diamond Trust Properties (CIVIL APPEAL NO. 08 OF 2013) [2017] UGSC 16 (24 April 2017)

8 Cap.76

9 SI 76-1
10 [1963] EA 455 (HCU)
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“...from my research, there is only one ordinance dealing with distress for rents extant in
Uganda i.e. the Distress for Rents (Bailiffs’) Ordinance Cap 116 Laws of Uganda) (now
Distress for Rents (Bailiffs’) Act Cap 76.). That deals with the appointment of bailiffs, the
cancellation of their certificates and penalties for acting without certificates. Court
Brokers Rules were promulgated under the Courts (Rules) Ordinance of 1956, but they
merely elaborate on the subjects dealt with in the Distress for Rent (Bailiffs’) Ordinance
Cap 116 (now Distress for Rents (Bailiffs’) Act Cap 76)”.

The Act provides that no person other than the landlord in person, his or her attorney or
legal owner of reversion, shall act as bailiff to levy any distress for rent unless he or she
shall be authorized to act as bailiff by a certificate in writing under the hand of a
certifying officer which may be a general or special certificate. 11 This remedy is to be
carried out by the landlord in person, or his authorized agent, for example advocate,
attorney or bailiff duly licensed. It is only when the landlord seeks to distress for rent
through someone else who is not either his attorney, or legal representative, that a
certificate will be necessary. In Joy Tumushabe & another vs Anglo – Africa Ltd and
Another 12, Kanyeihamba JSC held inter alia:

“… he who chooses to distress for rent under the Act must do so strictly in
accordance with the provisions and the rules of that Act. The bailiffs who are
authorised to distress for rent must be qualified and do so in accordance with the
terms and conditions prescribed under the Act or rules made thereunder.”

According to Hon. Justice Kiryabwire, in the case of Megallies Distillers (U) Ltd &
Anor v Byensi & Anor 13 he stated that:

“there is need for urgent legal reform as to operationalise applications and

Section 2 of the Act. The practice now adopted by the Bar that seems to have
been accepted by the lower Courts is to apply for a distress order under section

11 Section 2 of Cap. 76
12 SCCA No.7 of 1999
13 HCT - 00 - CC - MC - 9 - 2009

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 2 of the Distress for Rent (Bailiff’s) Act by way of notice of motion ex parte under
Order 52 rules 1 and 3 of the Civil Procedure Rules… I think the time has come
in the absence of direct legislation to evolve some best practices with regard to
orders made under Section 2 of the Distress for Rent (Bailiff’s) Act.”

In practice the courts and actors involved in the process of distress for rent such as the
court bailiffs generally rely on common law principles and this has brought a number of
challenges to the landlord who has to incur costs in obtaining a court order and the
execution of the order. This is not only time consuming but also involves the wasting of
business space as the landlord cannot claim his rent arrears from the tenant and neither
can he remove the tenants’ property.

Due to the gaps in the law and lack of awareness/sensitization most landlords
downtown in the business district of Kampala do not implement the Act and have relied
on very harsh measures to demand for rent arrears from their tenants such as locking
up the premises without proper notice to the tenants .This has brought discord among
the tenants causing a series of strikes which stifles business but also the security and
safety of Ugandans.

The Act is silent on the procedure for dealing with the goods distressed after seizure.
There is also excessive power when executing and high handedness of bailiffs during
the process of distress for rent. These challenges merit a review of the Act in order to
make proposals for its amendment and ensure proper administration and process of
recovery of rent arrears by landlords and property managers in Uganda.

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1.3 STATEMENT PROBLEM

The Distress for Rent (Bailiffs) Act which governs the remedy for distress for rent is so
limited. 14 Most of the detailed rules are to be found in common law and in case law.
This has left a lacuna in terms of some of the process or procedure to carry out distress
for rent. One such incident is a landlord seeking to distrain who often times precede at
his or her peril. A wrongful distress may subject him or her to liability for conversion or
trespass and in extreme cases for exemplary or punitive damages. This could be as a
result of highhandedness on his or her conduct or the difficulties in attempting to thread
his way through a maze of technical legal rules to effect a valid seizure.

The self-help nature of distress as a privately-executed remedy without prior judicial

authorization is seen as a legal anachronism that “is difficult to reconcile with modern
concepts of debtor protection. The traditional priority that distress affords landlords over
other creditors (both secured and unsecured) is seen as a further anachronism that is
no longer justifiable because this remedy gives landlords an unjustifiable advantage
over other creditors, who, just obtain a slower and costlier court judgment before being
able to attach or seize a debtor’s goods. The landlord’s right to seize property to satisfy
arrears of rent has often conflicted with the rights of another person who may also look
to that property to satisfy a debt owing by the tenant.

The general rule is that a landlord can distrain only upon goods that are located on the
tenants’ premises. The rule that all goods on the tenanted premises are distrainable is
subject to a multitude of exceptions. The rules under the Act are ambiguous, out of date
and permit third party goods to be taken. The Distress for Rent Act does not give
sufficient protection to third parties because no obligation is imposed on either the
landlord or tenant to report the seizure of goods to their owners. There is no exhaustive
guidance by the Act or Rules on what is exempt. This has left room for abuse of the
process and has sometimes led to third party interests being abused.

14 The Distress for Rent (Bailiffs) Act, Cap 76

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The opportunity for judicial consideration of the issues before distress takes place is
primarily limited to the time before the goods are sold. A number of tenants are still
unable to put forward a defense to the claim of non-payment of rent or cross-claim until
after the distress has been levied. The tenant’s remedies for wrongful distress are often
available too late and are artificially restricted by the form of impropriety in the distress.
There is only a short time for the tenant or third party to endeavor to stop a sale of the
goods. As a purchaser normally receives good title to the goods the sale is final. There
are circumstances when the sale is a sanction disproportionate to the tenant’s breach of
contract in not paying rent, as the goods can be difficult and expensive to replace.
Remedies other than retrieval of the goods do not always provide adequate
compensation. The provisions for penal damages are out of place in our modern legal
system and it seems wholly inappropriate that rescous and pound breach should be
indictable offences given that they occur in the context of rent arrears. 15

The Act does not provide for the time during which distress should be done and when
the landlord can effect the sale, because court process many at times takes so long and
properties depreciate with time, this becomes a challenge to such a person as they may
not recover all the rent arrears.

During the process of distress where the landlords through the court bailiffs seize the
goods of their tenant to enforce the payment of arrears of rent tenants have in many
occasions complained of the way they are handled by the court bailiffs who damage
their goods during the process and also cause them a lot of embarrassment and
financial loss. In practice the landlord must lawfully enter the premises, the goods must
be seized in a certain manner and the goods must be impounded. Omitting or
mishandling any of these steps renders the distress incomplete or illegal.
These technical and complex rules usually frustrate both the landlords and tenant and
this has led to a series of strikes which have led to the disruption of business and the

15The Law Commission -(LAW COM. No. 194) LANDLORD AND TENANT DISTRESS FOR RENT, Laid before Parliament by the Lord
High Chancellor pursuant to section 3(2)
of the Law Commissions Act I965
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security of the Ugandan citizens, and so the Government of Uganda has realized the
need to address this problem.

With the above mentioned challenges the Commission has found it necessary to review
the Distress for Rent (Bailiffs) Act Cap.76 to address these challenges in order to
ensure a modern process of recovery of rent which is fair, systematic and satisfactory to
both the landlord and tenant.

1.4 OBJECTIVES

The main objective of the study is to examine the implementation of the Distress for
Rent (Bailiffs) Act, Cap.76 in the current socio and economic context of Uganda.

The specific objectives are-:

1. To identify gaps in the procedure and processes of distress for rent.

2. To establish implementation challenges faced by the actors/players involved.
3. To examine whether the law is still relevant.

1.5 JUSTIFICATION

The Act was enacted in the year 1933 to appoint bailiffs for the purpose of distress for
rent. Since its enactment there have however not been any specific reforms on various
substantive and procedural aspects of this law. There has not been a systematic and
comprehensive review towards reform that should respond to the current changes and
developments that have emerged in Uganda in regard to the recovery of rent arrears.
This review is aimed at examining the shortcomings of this Act and raise issues that
need to be addressed for the improvement of the law.

The Government of Uganda recognizes the strategic social and economic importance of
housing in the national economy and particularly to the socioeconomic transformation of
the country as highlighted in Vision 2040. It is the Government’s policy to ensure that

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every family lives in a decent and affordable house that meets the necessary
requirements of safety, security of tenure, health, privacy and protection from the
weather adversities. It is therefore imperative to make improvements on laws relating to
the achievement of the above government policy.

The real estate /property development in Uganda has grown over the years and private
companies have joined the property development business. With this new development
the law relating to Distress for Rent (Bailiffs) Act 16 needs to be amended to ensure the
confidence of real estate developers who pay taxes and contribute to the economic
development of this country by putting up both residential and commercial structures for
rent.

It is also imperative to establish and investigate legal issues, gaps and challenges that
stifle the procedure and processes under the Distress for Rent (Bailiffs) Act; as well as
issues curtailing the implementation of the Act since its enactment in 1933.

In light of this, the review of the Distress for Rent (Bailiffs) Act 17 would enable the
remedy to effectively and efficiently address any legislative and non-legislative
measures necessary to address the challenges currently in existence.

1.6 SCOPE OF THE STUDY

The study will cover the following thematic areas -:

1. Gaps in the procedure and processes of distress for rent; nature of goods to be
distressed and the right to sale distressed goods.
2. Challenges faced by actors/players in the implementation of the Act; notice to the
tenant before distress, role of Court bailiffs and Police in the distress for rent
process.

16 Distress for Rent (Bailiffs) Act,Cap.76

17 Distress for Rent (Bailiffs) Act,Cap.76

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 3. Relevancy of the remedy of distress for rent in the current economic-socio
circumstances in Uganda.

Best practices from legislative reforms that other jurisdictions have pursued to consider
a case for and against abolition of distress for rent will be examined.

The category of persons consulted will be purposely selected because they are
mandated to ensure proper administration of the process of distress for rent and others
consulted are landlords and tenants.

The central business district of Kampala has been selected as the study sample due to
the fact that most of the complaints and strikes have been registered in Kampala.

1.7 METHODOLOGY

a) Study Design

The review will largely be qualitative. The qualitative method will be used to generate
views, perceptions and opinions on the subject matter. The exercise will involve an in-
depth examination of the Distress for Rent (Bailiffs) Act 18 and other related policy and
legislation. It will also cover challenges facing the implementation of the Act.

b) Study Population:

The study population will include tenants, landlords, property managers, judicial officers
from the Chief Magistrates courts of Nakawa, Makindye and Mengo, Uganda Law
Society, Officials from the Directorate of Housing under the Ministry of Lands, Housing
and Urban Development, Court bailiffs under the umbrella organization of the Court
Bailiffs Association, The Law Development Centre, Makerere University -School of law
and other relevant stakeholders.

18 Distress for Rent (Bailiffs) Act,Cap.76

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 c) Methods of Data collection:

1) Preliminanary Consultations:

The Commission conducted consultations with stakeholders including tenants,

landlords, property managers; judicial officers from the Chief Magistrates courts,
Uganda Law Society,Officials from the Directorate of Housing under the Ministry of
Lands, Housing and Urban Development, Court bailiffs and Academia. The objective of
these consultations was to contextualize the issues and challenges faced in the
implementation of the Act in order to get a better understanding of the operations and
administration of the Act and therefore be able to contextualize the gaps and challenges
with the law. These consultations assisted the Commission in identifying the issues for
reform that are captured in the Issues paper.

2) working group meetings (TWG):

A working group comprising of technical persons representing the tenants, landlords,

property managers; judicial officers from the Chief Magistrates courts, Uganda Law
Society, Officials from the Directorate of Housing under the Ministry of Lands Housing
and Urban Development, Ministry of Justice and Constitutional Affairs, Court bailiffs,
Uganda Police Force and Academia will be constituted and charged with the
responsibility of the reform of the law.

A total of 5 working group meetings are planned for the duration of the study. The
meetings will be held at various stages of the study for different purposes including
review of the issues paper and development of proposals and recommendations from
the review of the Distress for Rent (Bailiffs) Act.

At these meetings the TWG will examine the identified issues in the Act and regulations
that will merit attention during the review as well as stakeholders’ concerns that were
captured during the preliminanary consultations that will be used for the development of
the study report.

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 3) Validation Workshop

The Commission will carry out validation of the proposals put forward. This is intended
to ensure that the proposals are discussed at a wider forum of stakeholders in this field
to build consensus on the proposals raised through consensus building workshops and
meetings.

d) Deliverables:

a) Preliminary Consultation Report.

b) Issues paper.
c) Technical Working Group Meeting Report.
d) Study report.

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 CHAPTER TWO

ISSUES FOR CONSIDERATION

2.0 INTRODUCTION

This chapter presents thematic areas considered for the review. Issues have been
developed and discussed herein based on the current law, available literature and the
preliminary findings from implementers /players.

The Commission makes interim /preliminary proposals on which it seeks stakeholders’

views and comments. The proposals put forward will be enriched with further practical
experiences and views from the technocrats and implementers of the Distress for Rent
(Bailiffs) Act, Cap 76.

2.1 GAPS IN THE DISTRESS FOR RENT(BAILIFFS)ACT,CAP 76.

a) Procedure for distress for rent:

Currently the Distress for Rent (Bailiffs) Act is a combination of common law principles
and statute law. The procedure for applying for an order for distress for rent under
Section 2 of the Distress for Rent Act is not provided for under the said Act and that has
been a lacuna in the law for a long time. 19The common practice that has been adopted
is through notice of motion under S.98 of the Civil Procedure Act and Order 52 Rule 1 of
the Civil Procedure Rules. 20 This application however is made ex parte to prevent the
tenant from sprinting away with his or her property when notice is given to him or her. It
favours the landlord and has led to the confiscation of goods that are not owned by the
tenant but rather a third party. There is need therefore to examine this process and

19Magallues Distillers Uganda Ltd and Another Vs. Byansi and Another HCCMA. N0. 9 of 2009.
20S.98 of the Civil Procedure Act Cap. 71, which provides that nothing shall be deemed to limit or otherwise affect the inherent
power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the
court. Further O,52 Rule 1, states that all applications to the court, except where otherwise expressly provided for under these
Rules, shall be by motion and shall be heard in open court.
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specifically provide for notice to be given to the other party and codify the accepted
practice under the Act.

Issues for consideration

1) What is the best procedure/process for distress for rent?

2) Should the process be codified?
3) What penalties should apply in the event that the court bailiffs/landlord has
breached the established procedure?

b) Goods subject to distress:

At common law, prima facie all goods and chattels found on the demised premises
could be distrained, regardless of their ownership. However, this rule is subject to
numerous exceptions. Some goods are absolutely privileged from distress which means
that they cannot be taken in any circumstances. Others only have qualified privilege
which means they are not to be taken if there are sufficient unprivileged goods on the
property. This self remedy makes it difficult for a landlord to distinguish goods that can
be distressed however the common law classified some goods as being absolutely
privileged from distress, namely:

a) goods of the Crown (Government);

b) fixtures;
c) perishable articles, including crops;
d) money which was not in a receptacle; and
e) animals.

In Uganda, particularly the Act does not provide for what can be distressed. This has
caused the seizure of property that cannot be distrained and thus the right to distress
becoming illegal and therefore no remedy for the landlord. A tenant can also
'undermine' a distress by advising and encouraging third parties of the distress to

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remove their goods before a distress is levied, or to lodge declarations of ownership
with the landlord.

In the “Law of Landlord and Tenant”21 Evan and Smith stated that… if the tenant
interferes with seized goods, then this is pound-breach entitling the landlord to treble
damages. But if the distress is illegal or on privileged goods such as tenant’s fixtures or
tools and implements of the tenants trade are seized, then the tenant may rescue the
goods. 22

Different jurisdictions have particularized in their laws the chattels they believe should
not be distressed and the reformers of the law could adopt some of these ideas as
discussed hereunder. 23 Not only goods or stock can be seized. In some situations - for
example, rates arrears - a bailiff can seize the tools of the trade and manufacturing
machinery, and because these items generally have more value they are more likely to
be seized where few other items are of value. 24The goods of a person who has some
interest, in the land jointly with the distrainer, as those of a joint tenant, although found
upon the land, cannot be distrained. The goods of executors and administrators, or of
the assignee of an insolvent regularly discharged according to law, cannot, in
Pennsylvania, be distrained for more than one year's rent. The goods of a former
tenant, rightfully on the land, cannot be distrained for another's rent. For example, a
tenant at will, if quitting upon notice from his landlord, is entitled to the emblements or
growing crops; and therefore even after they are reaped, if they remain on the land for
the purpose of husbandry, they cannot be distrained for rent due by the second
tenant. 25

21
The Law of Landlord and Tenant 6th Edition at page 173
22 Distress for Rent Act 1689, section 3.
23Distress legal definition of distress https://legal-dictionary.thefreedictionary.com/distress
24 Bailiffs and their powers - Out-Law.com https://www.out-law.com/topics/property/corporate-occupiers/bailiffs-and-their-

powers/accesed on 2nd May 2019

25 A Treatise on the Law of Landlord and Tenant: Richard Holmes Coote; London; Saunders, Benning, Law Book Sellers 1840

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In Kenya, the law provides for goods that are exempt from distress and these include;
the property of government, goods and chattels in the possession of the law, things
delivered to a person exercising a public trade, to be carried, wrought, worked up or
managed in the way of his trade, things in actual use or occupation of the person
distrained upon at the time of the distress among others. 26 The law also provides for a
remedy in case exempt goods have been distrained through a summary order for the
goods or chattels to be restored and if sold, such sum as the court may determine to be
the value thereof shall be paid to the complainant by the person who levied the distress
or directed it to be levied. 27

Issues for consideration

1) Should the law specifically provide for goods that are exempt from
distress?
2) What goods may be excluded from distress?

c) Protection of third party rights:

At common law, the general rule is that a landlord can distress only upon goods that are
located on the tenant’s premises. This has sometimes led to third party interests being
abused. There is no guidance by the Act or Rules on what is exempt. This has left room
for abuse of the process, due to failure of the law to give recognition to third party rights.
The law is silent on who bears the onus of identifying these goods since it is not in the
interest of the tenant. The third party who most times is not in the know that distress has
taken place is prejudiced by this and the responsibility is on him or her to prove that
they are not the tenant’s property. Unfortunately for landlords, challenges by a third
party to the distress is impossible to predict before distress is levied and the other wise

26The Distress for Rent Act Cap.293, laws of Kenya

27 The Distress for Rent Act Cap.293, laws of Kenya S. 16(2)

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efficient and effective remedy of distress becomes complicated, expensive and
ineffective.

Issues for consideration

1. Whether or not to give notice to protect third party rights?

2. What would be the remedy to a third party whose goods have been
distressed?
3. What would be the remedy to a third party whose goods have been sold
off?

2.2 CHALLENGES WITH THE IMPLEMENTATION OF THE ACT:

a) Notice to tenant before distress:

The Distress for Rent (Bailiffs) Act and the rules 28 are silent on the provision that
requires the landlord to give notice to the tenant before distress. In the case of
Kiwanuka and another Vs. Franco and others 29 it was held that the application to
court for an order of distress should be exparte and without notice to the tenant.
Requiring a landlord not to give notice to the tenant deprives the other party an
opportunity to show cause why distress should not be issued. Evans and Smith 30 state
that… “At the time the distress takes place, the tenant must be given notice of distress.
If within 5 days of distress the rent is not paid, the goods may be sold off to pay the
arrears…” 31 During this review the Commission will set out to establish whether
requiring the landlord to give notice to the tenant before distress is viable.

28
Distress for Rent (Bailiffs) Rules SI-76-1
29
Kiwanuka and another v. Franco and others misc. Application no. 2763 of 2014 (2015)
30 Evans &Smith “The law of Landlord and Tenant” Sixth edition, March 2003 at page 173, paragraph2
31 Evans &Smith “The law of Landlord and Tenant” Sixth edition, March 2003

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Issues for consideration
1) Should notice be provided before distress for rent is carried out?
2) How should notice for distress be served?
3) What should be the reasonable time frame given to the tenant?

b) Right to sale distressed goods:

The Distress for Rent (Bailiffs) Act is silent as to whether the landlord has a right to sell
the distressed properties. The common law position also does not provide a right to sell
the distrained items. It only allows the landlord or person authorized by him and certified
by court to take into his or her possession the chattels of his or her tenant who has not
paid rent to be held as a pledge/lien but not sale to compel the payment of rent.

In the absence of any express statutory provision, it is unclear what rights a landlord
has over goods distrained. Whereas the most ordinary and ready way for recovery of
arrears of rent is by distress yet such distress not being sold but only detained as
pledge for enforcing the payment of such rent has little benefit. 32 In the case of Yoka
Rubber Industries v Diamond Trust Properties, 33 Hon. Lady Justice Faith Mwondha
stated that “when the remedy was exercised, the chattels remained only as a pledge in
the hand of the party making the distress and could not be sold. This continues to be
the law with regard to chattels taken by way of distress where the mode of dealing with
distress has not been altered by an Act of Parliament; over such chattels, the distrainer
has no other power than to retain them till satisfaction is made”. There has not been any
Act of Parliament to alter this position.

However cases have laid down a position that the sale can only be done upon acquiring
a court order to do so. At common law there was no right to sell distress property
without a court order; one would only retain the property as a coercive measure to

32 Halsbury’s Statutes , 4th Edition Butterworth Page 670

33 Civil Appeal No. 08 of 2013 [2017]
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enforce payment or could only sell after authorization from court. 34 This has also been
stated in the case of Uganda Motors LTD V Wava Holdings Ltd 35 that the landlord
has no power to sell without judicial order.

In Kenya, the Distress for Rent Act Cap.293, Laws of Kenya, 36 landlords are allowed to
seize and sell belongings of defaulting tenants through auctioneers to recover rent
arrears. It provides that “any person having any rent or rent service in arrear and due
upon … a lease” has the right to a “remedy by distress for the recovery of that rent or
rent service. 37

The Act further states: Where any goods or chattels are distrained for rent reserved and
due upon a grant, demise, lease or contract, and the tenant or owner of the goods or
chattels so distrained does not, within fourteen days after distress has been made, …
pay the rent together with the costs of the distress, or replevy them, with sufficient
security to be given to the licensed auctioneer according to law, the person distraining
may lawfully sell on the premises or remove and sell the goods and chattels so
distrained for the best price which can be obtained for them, towards satisfaction of the
rent for which they are distrained, and of the charges of the distress, removal and sale,
handing over the surplus (if any) to the owner. 38

Issues for consideration

1) Whether or not distressed goods should be sold off?

2) What should be the procedure for sale of distressed goods?
3) What time frame should be given as notice before the goods are sold off?

34
Lyans V Elliot 1 QBD (1876) 210 at 213.
35 Uganda Motors Ltd v. Wava Holdings Ltd C.A 19/1991
36 [Date of commencement: 1st June, 1938.] Revised Edition 2012 [2010] Published by the National Council for Law Reporting

with the Authority of the Attorney-General www.kenyalaw.org

37 The Distress for Rent Act, section 3(1), 6 Laws of Kenya, Cap. 293 (LexisNexis, rev. ed., 2009), Kenya Law Reports
38 Section 4(1) distress for rent Act cap 293, Laws of Kenya

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 c) Implementers of the distress for rent process:

In Uganda, Section 2 of the Distress for Rent (Bailiffs) Act 39 provides for the
appointment of bailiffs under certificate of a certifying officer. In practice, many landlords
employ a certificated bailiff to carry out distress. If the bailiff levies the distress he must
comply with additional rules including a requirement to give the tenant notice that
distress has taken place. It is also the duty of the bailiff in case of sale of distressed
property to obtain the best net price for the goods and hand back the surplus to the
tenant after recovering the outstanding arrears. However the Act is silent on the duties
and the requirements of one to qualify as a bailiff. This has left the process marred with
a lot of high handed court bailiffs who unexpectedly intrude into the tenants’ property,
mishandle the tenants’ property and the possibility of selling the tenants property at an
undervalue with disregard to the tenants’ circumstances. This demonstrates that the
court bailiffs have a general lack of recognition of a modern approach to debt
enforcement.

Preliminary findings do indicate that the Uganda Police Force is also a very important
stakeholder in the process of distress for rent. In practice after obtaining a court order
the court bailiff must then report to Internal Security Organization then to the Resident
District Commissioner, District Police Commander and then to the Criminal
Investigations Department for verification of the court order before proceeding to
distress the tenants’ property. 40 This process is tedious and very costly for both the
landlords and court bailiffs. It involves engagements with different departments of the
Police and payments of up to one million Ugandan shillings to get clearance from any of
these offices.

39 Distress for Rent (Bailiffs) Act. Cap, 76

40 Preliminary consultations with Court Bailiffs held on Thursday 21st March 2019.
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Section 1 of the Distress for Rent (Bailiffs) Act 41 defines a certifying officer for purposes
of distress for rent as a Chief Magistrate and a Magistrate Grade 1. However the
pecuniary jurisdiction of these mentioned courts is up to 50 million Uganda shillings. 42
The Act is silent on matters that are above the stipulated pecuniary jurisdiction and the
Chief Magistrates have often been challenged by landlords who seek to distress for rent
arrears above the stipulated 50 million Uganda shillings claiming that the magistrate has
no powers to hear such a case.

Issues for consideration

1. How best should court bailiffs conduct the distress for rent process to
ensure safety of goods and property and not infringing on tenants’ rights?
2. What is the justification for security personnel to participate in the process
for distress?
3. Is the current practice of soliciting security for purposes of distress
adequate/appropriate?
4. How should magistrates handle cases where the value of the property is
above their pecuniary jurisdiction?

2.3 RELEVANCE OF THE DISTRESS FOR RENT (BAILIFFS) ACT.CAP 76

Critics of the distress for rent remedy state that the law is archaic and there has not
been any substantial amendment to the Distress for Rent (Bailiff) Act. 43 As a result the
rules under the Act have also not been amended. It has been noted that distress for rent
is an archaic remedy which has no place in a mature legal system. It is encrusted with

41 Distress for Rent (Bailiffs) Act, Cap .76

42 Magistrates Court Act, Cap. 16
43 Distress for Rent(Bailiffs) Act ,Cap .76

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technicalities, and the law relating to it ‘constitutes a veritable jungle of rules and
exceptions’ 44

It is discriminatory in giving the landlord rights which other creditors do not enjoy, and in
placing the tenant in greater peril than other debtors. It is an arbitrary, high-handed and
a summary process, unless as in the case of residential tenancies the leave of the court
must first be obtained. Its very existence as a legal remedy besmirches the fabric of
English civil justice.” 45

No reform of the law of distress can remove these attributes without changing the
nature of the remedy and perhaps rendering it ineffective. Currently, it is widely
recognised that a debt enforcement process which subjects the debtor to coercion, fear,
shock and humiliation is not socially acceptable, even in those cases where tenants are
merely using the landlord as a cheap source of finance. 46

In the case of Fuller V Happy Shopper Markets Ltd 47 the Court of Appeal of England
declared that distress for rent is harsh and perhaps anachronistic, it was further stated
that “the human rights implications of levying distress must be in the forefront of the
mind of the landlord before he takes this step” 48 This is also stated by Judith Bray49 that
the remedy presents a serious interference with human rights…. she cites the above
case and refers to Article 8 of the European Convention on Human Rights which
provides for the right to privacy and home and Article 1 of the first protocol to the
peaceful enjoyment of a tenant’s possession. Therefore though this may be an effective
self-help remedy, the landlord needs to be cautioned about the human rights violations
that might arise in the process.

44 Report of the Committee on the Enforcement of Judgment Debts (1969), Cmnd. 3909, paras. 912-927and 932.
45 Sir Jack Jacob, The Fabric of English Civil Justice (1 987), p. 179.
46 Part V, para. 5.4 and Part 4 of the National Consumer Council’s Report entitled “Private Bailiffs: Their role in domestic debt

collection” (1990).
47 (2001)25 EGLR 159

48 Fuller v. Happy Shopper Markets Ltd (2001)25 EGLR 159 at 164

49 Judith Bray, Unlocking Land Law, book aid international, 2006 AT PAGE 421

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The measures that a landlord can take to seize and sell distrained goods are
inconsistent and unclear in the Act. Most other common law jurisdictions for a
distraining landlord to enter the premises, levy distress, and then padlock the door to
put the tenant out of possession and end the lease has caused irregularities in the
process. Currently the tenant cannot be locked out or evicted out of their premises
before a court order is issued. 50

Some jurisdiction such as Kenya 51 amended the distress for rent act and provide for
modern principles such as the right to distress, the sale of distressed goods and articles
exempt from distress, penalties for unlawful distress among others. In South Australia 52
and New Zealand 53 they recommended the complete abolition of distress for rent.
Restrictions have been imposed or recommended on the use of distress in other
common law jurisdiction. 54 In British Columbia, the Law Reform Commission
recommended retention for commercial cases until a new security mechanism has been
introduced. 55

In Uganda, the Landlord Tenant Bill 56 has proposed the repeal of the Distress for Rent
(Bailiffs) Act. 57 The Bill recommends that the recovery of rent arrears is handled under
the Judicature (Small Claims Procedure) Rules. 58 The small claims procedure provides
for claims of up to ten million shillings and more so companies are excluded from
claiming under the small claims procedure. 59 The Landlord Tenant Bill, if passed in its

50 S.32A of the the Land (Amendment) Act No.1 of 2010

51 Distress for Rent Act Cap 293 Revised Edition 2012
52 The Sixty-Sixth Report of the Law Reform Committee of South Australia relating to the Reform of the Law of Distress (1983).
53 The Property Law and Equity Reform Committee Final Report on Legislation relating to Landlord and

Tenant, New Zealand (1986). The Committee concluded that the abolition of the right of distress should be without prejudice to
any other form of recognised security for unpaid rent which may be agreed to by the parties (para. 100).
54 In Ontario, the Residential Tenancies Act 1980, s.3 1 provides for a prior order of the court or residential tenancy commission

to be obtained before distraining.

55 The British Columbia Law Reform Commission Report No. 53 on Distress for Rent (1981). The British Columbia Personal

Property Security Act 1989 makes provision for the security mechanism but to our knowledge it is not yet in force.
56 The Landlord and Tenant Bill 2018, Clause 30 and 31 of the Bill.
57 Cap 76
58 No.25 of 2011
59
Section 5 of Judicature (Small Claims Procedure) Rules

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current form is likely to form a lacuna in the law where landlords demanding to distress
for rent arrears above ten million shillings are still left with the option of handling the
matter with the existing court system which is currently facing case back log.

The justification for the retention of the Distress for Rent (Bailiffs) Act is that it is a faster
and quicker remedy compared to the court process that takes years to obtain justice for
the landlord. More still the remedy for distress gives the tenant an opportunity to redeem
his or her property since it is seized and not sold off till a specific time period.

During the preliminary consultations it was also revealed that aggrieved landlords
commonly use the distress for rent remedy. Statistics obtained from the magistrate’s
courts indicate that this is a widely applied remedy. For example; in 2017 (70 cases), in
2018 (48 cases) and by March 2019, (16 cases) had been lodged at the Magistrates
court. 60 Similarly at the Chief Magistrates Court of Makindye, it was established that in
the civil cases lodged, the distress for rent procedure is mostly used. This signifies that
this remedy is appreciated by the users and is frequently applied.

The creation of a tribunal to hear cases of rent arrears as proposed during the
preliminary consultations has its shortcomings. This would not be a faster and efficient
solution for the landlord. The establishment of a tribunal would need a more holistic
approach where appeals can also be lodged in case a party is aggrieved with the
decision of the tribunal and this will lead to delayed justice for the landlord.

Another proposal from the stakeholders that were consulted was the use of a summary
suit. However the usage of a summary suit procedure under Order 36 of the Civil
Procedure Rules has the potential of turning into a main suit. This defeats the purpose
of a quick and efficient remedy for the landlord seeking to recover rent arrears.

Lastly, it was suggested by the respondents consulted that the LC court system can
adjudicate on matters of recovery of rent. This also has practicable challenges because

60
Interview at the Chief Magistrates Court at Mengo on 16th March 2019

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some of the LC courts have not been operationalized and their working is highly
politicized.

It is therefore during this review that the Commission will set out to establish whether
the distress for rent remedy is relevant in the current legal, socio-economic situation of
Uganda.

Issues for consideration

1) Is the remedy of distress for rent still relevant in the current legal, socio-
economic situation?

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 BIBLIOGRAPHY
Legislation
1. The Constitution of the Republic of Uganda 1995 (as amended)
2. Distress for Rent (Bailiffs) Act, Cap76
3. Civil Procedure Code Act, Cap 71
4. The Land (Amendment)Act No.1/2010
5. Distress for Rent Cap. 293 (Laws of Kenya)
6. Magistrates Courts Act. Cap,16

Rules
1. Distress for Rent (Bailiffs) Rules SI-76-1
2. Civil Procedure Rules SI-71-1
3. The Judicature (Court Bailiffs) Rules.
4. The Court Bailiffs Rules of 2012

Case Law
1. J. Tumushabe Vs M.S Anongo-African LTD and Anor SCCA No. 79 of 1999
2. Magallues Distillers Uganda Ltd and Another Vs. Byansi and Another HCCMA.
N0. 9 of 2009.
3. Wampewo Service Station Vs. Italian Garage (Pizzandi) Ltd[1963] EA 455 (HCU)
4. Komakech & 7 Ors Vs Ayaa & Anor (CIVIL APPEAL No. 0028 OF 2016) [2018]
UGHCCD 54 (11 October 2018);
5. Yoka Rubber Industries Vs. Diamond Trust Properties -CIVIL APPEAL NO. 08
OF 2013) [2017]
6. Ongom & Anor Vs Attorney General & 2 Ors 1979] HCB 267
7. Parrot Vs Musoke Sempala [1978] HCB 181
8. Ocen Vs Edatu( Civil Appeal No.30 of 2014) UGHCCD 20(13 March 2015)
9. Assist (u) ltd Vs Italian Asphalt and Haulage LTD & anor HCCS no 1291 of 1999
10. Kiwanuka and another Vs. Franco and others misc. application no. 2763 of 2014
(2015)
11. Souza Figueiredo & Co. LTD. Vs George & others (1959] E.A. 756
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 12. Lyans v Elliot 1 qbd (1876) 210 at 213
13. Uganda Motors LTD Vs. Wava Holdings LTD CA19/1991
14. Fuller Vs. Happy Shopper Markets LTD (2001)25 EGLR

Policy
1. The Uganda National Housing Policy, May 2016
2. The landlord Tenant Bill,2018

Books and Journals

1. Halsbury’s Laws of England(4th Edition) Lord Hailsham of St. Marylebone Vol.13

2. Distress for Rent in Commercial Tenancies, Manitoba Law Reform Commission
Report. January 1994
3. Report on Distress for Rent ,LRC 53 Law Reform Commission of British
Columbia November 1981
4. Evans and Smith, Law of Landlords and Tenant 6th edition
5. The Concise Law Dictionary (6th Edition)
6. Judith Bray, Unlocking Land Law
7. Richard Holmes Coote, A Treatise on the Law of Landlord and Tenant

International Protocols

1. The Universal Declaration of Human Rights of 1948

2. International Covenant on Economic, Social and Cultural Rights of 1966, Agenda
21 of 1992
3. The Istanbul Declaration and Habitat Agenda of 1996
4. The African Charter on Human and People’s Rights (1986)
5. The East African Community Treaty

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