[2021] KEBPRT 498 (KLR)
The tribunal found that the applicant had demonstrated a prima facie case for the grant of a temporary injunction, as the respondents did not oppose the application and the applicant had shown commitment to pay the outstanding licence fees, with evidence of partial payments and deposits held by the landlord. The...
Source-derived case information.
- Citation
- [2021] KEBPRT 498 (KLR)
- Parties
- Applicant: Baldev Singh Sembi t/a Sembi Coach & Truck Holders Ltd; Respondent: Avtar Singh Suri; Respondent: Henry Nzyuko t/a Icon Auctioneers
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 1024 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- Application allowed; temporary injunction granted.
- Legal Topics
- Commercial Tenancy, Distress for Rent, Interlocutory Injunctions, Covid 19 Impact on Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Baldev Singh Sembi t/a Sembi Coach & Truck Holders Ltd
Applicant
Avtar Singh Suri
Respondent
Henry Nzyuko t/a Icon Auctioneers
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant is entitled to a restraining order against the respondents from interfering with his tenancy pending hearing and determination of the main reference.
- 2 Whether the proclamation notice dated 16th December 2020 should be withdrawn.
- 3 Whether the applicant is entitled to a full account of the alleged rent arrears.
Ratio Decidendi
The tribunal found that the applicant had demonstrated a prima facie case for the grant of a temporary injunction, as the respondents did not oppose the application and the applicant had shown commitment to pay the outstanding licence fees, with evidence of partial payments and deposits held by the landlord. The distress for rent and proclamation notice were disputed, and the applicant sought an account of the alleged arrears. The tribunal was satisfied that the conditions for a temporary injunction were met, and therefore granted the orders sought in the application, specifically restraining the respondents from interfering with the applicant's tenancy, withdrawing the proclamation...
Court Disposition
Application allowed; temporary injunction granted.
Orders
- Respondents restrained from interfering with the applicant's tenancy in the premises known as Godown no. 1 and open Space on Pate road plot no.209/8167.
- Proclamation notice dated 16th December 2020 is withdrawn.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 1024 OF 2020 (NAIROBI)
BALDEV SINGH SEMBI T/A
SEMBI COACH & TRUCK HOLDERS LTD..........................TENANT/ APPLICANT
VERSUS
AVTAR SINGH SURI AND.....................................LANDLORD/1ST RESPONDENT
HENRY NZYUKO T/A
ICON AUCTIONEERS................................AUCTIONEERS/2ND RESPONDENT
RULING
1. By a motion dated 18th December 2020, the Tenant is seeking in material part for a restraining order against the Respondents from interfering with his tenancy in the premises known as Godown no. 1 and open Space on Pate road plot no.209/8167.
2. He also seeks for withdrawal of the proclamation notice dated 16th December, 2020.
3. The Applicant further seeks for an order of complete account of alleged arrears of Kshs.1,342,984/-.
4. The Application is supported by the affidavit of BALDEV SINGH SEMBI sworn on 18th December, 2020 and annextures thereto.
5. The gist of the Applicant’s case is that he entered into a tenancy agreement on 30th December, 2019 and 31st August, 2020 in respect of the demised premises.
6. The said agreement expires on 31st August, 2021 and the agreed licence fee payable is Kshs.159,500/- per month for the Godown and Kshs.63,363/- for the open space.
7. The Applicant contends that he has been paying the licence fees as and when the same falls due and payable.
8. His business has however been affected by the Covid-19 pandemic thereby affecting his ability to pay the reserved licence fee.
9. As a result he had paid the licence fee for the Open Space upto November, 2020 and for the Godown upto October, 2020.
10. The Application also issued the 1st Respondent with current and postdated cheques as a show of commitment towards paying the licence fees.
11. It is the Applicant’s case that the Landlord still holds 3 months licence fees as deposit.
12. On 16th December, 2020 the Applicant’s goods were proclaimed for attachment by way of distress for rent as evidenced by annexure BSS3 for Kshs.1,354,984/-.
13. The Applicant therefore brought the motion to forestall losing equipment and machinery used in his business.
14. He disputes the demanded rent arrears and seeks for a statement of account in respect thereof.
15. The Respondent did not file a response despite appointing an advocate on 15th March, 2021 and as such the application remains unopposed.
DISPOSITION
16. I have therefore considered the Application and I am satisfied that the Applicant has satisfied conditions for the grant of a temporary injunction.
17. I shall therefore issue orders in terms of prayers (c ), (d), (e ) and (f) of the application with costs.
18. The main reference shall be fixed for hearing in the Registry in the normal way.
19. For avoidance of doubt, the applicant shall continue paying the rent arrears together with accruing rent in the terms proposed by him and in accordance with the licence agreement as and when the same falls due and payable.
it is so ordered.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
RULING DATED, SIGNEDAND DELIVERED THIS 21ST DAY OF MAY 2021.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
In the presence of:
Miss Mwangi for Tenant/Applicant
No appearance for the Landlord