[2022] KEBPRT 130 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. NAIROBI 253 OF 2021 (NAIROBI)

BASHIDA RAJABALI GANIJEE

(Suing as the Co-executive and on behalf of the

Estate of the Najimudin Jiwaji Ganijee (Deceased)........LANDLORD/APPLICANT

VERSUS

ASSOCIATED GASKET MANUFACTURERS LIMITED.....TENANT/RESPONDENT

RULING

1. The Landlord’s application dated 18th March 2021 seeks that the Landlord be granted leave to levy distress for rent against the Tenant for unpaid rent arrears amounting to Kshs 729,000/-, that costs of the application and the reference be assessed and recovered together with the unpaid rent arrears through the levying of distress. The Applicant has also sought police help/assistance in the execution of the orders sought.

2. The motion is supported by the affidavit of Rashida Rajabali Ganijee which I summarize as follows;

a. That the Applicant is the co-executor of the estate of the late Najmudin Jawaji Ganijee in whose name the suit premises is registered.

b. That the Tenant has been paying rent to the Applicant since the death of Jan Mudin Jiwaji Ganijee.

c. That the tenancy herein is controlled.

d. That the Tenant is in rent arrears amounting to Kshs 729,000/- being rent arrears for six months.

e. That the permission of the Tribunal is mandatory in levying distress for rent.

f. That the Tribunal has power to assess costs payable for the application and the reference.

3. The motion is opposed. The Tenant/Respondent has filed a replying affidavit sworn on 26th April 2021 and which I summarize as follows;

a. That the deponent is a Director of the Respondent and competent to swear the replying affidavit.

b. That the fact that rent was paid into an account co-owned by the deceased and the Applicant does not make the Applicant a Co-Landlord.

c. That covid has affected businesses worldwide and the Respondent’s failure to pay rent promptly is due to factors beyond its control.

d. That the Tenant is not in rent arrears of six months as claimed.

e. That the Tenant is not refusing to pay rent but only seeks that the Landlord tables the correct account of the rental arrears and also takes notice of the unfavourable business climate due to the effects of the covid pandemic.

f. That the Applicant has suffered insecurity due to the failure of the Applicant to secure part of the premises.

g. That upon the ascertainment of the rent due, the Respondent should be given a structured plan on how to pay the same.

h. That the Respondent has made the payments shown in his annexture “A”.

4. This application came up for oral arguments on 6th September 2021 and I summarize the oral submissions of the Applicant as follows;

a. That the Applicant has applied to levy distress for the sum of Kshs 729,000/- being the accumulated rent arrears.

b. That the arrears as at 25th June 2021 were Kshs 607,500/-.

c. That the rent is not disputed.

d. The Tenant admits to be in arrears but disputes the money owed, an issue that has been dealt with in the Landlord’s further affidavit and the correspondence attached thereto.

e. That there has been no formal demand to the Landlord to do any of the things complained of.

f. That the averments in the Applicant’s further affidavit remain uncontroverted.

5. The oral submissions of the Respondent in opposing the application may be summarized as follows;

a. That no rent book has been submitted under section 5(a) of Cap 301 which would have established the outstanding rent. That section is couched in mandatory terms.

b. What the Landlord has presented are his own calculations, the issue of arrears has not been settled.

c. That what the Applicant has presented to court are correspondences on a without prejudice basis from third parties, the production of which the Respondent objects.

d. That if the arrears are proven, the Tribunal ought to take the covid 19 pandemic and its effects into consideration.

e. The Tenant has requested on a without prejudice basis to be allowed to defray the arrears through monthly instalments.

6. The Applicant’s counsel further submitted;

a. That the parties herein have been requested to file accounts on several occasions.

b. The rent is in arrears and the amount owed is agreed upon.

c. That the only issue raised on a without prejudice basis is the issue of payment in instalments.

d. The court ought to do substantive justice.

e. The Tenant does not state the rent outstanding since March 2021 when this matter came to court.

7. The only issue that arises for determination in this application is whether the Tenant is in rent arrears and if so, whether the Applicant/Landlord is entitled to levy for distress for the recovery of the said arrears.

a. The Landlord’s position is that as at 18th March 2021 when he swore the supporting affidavit, the Tenant owed rent in the sum of Kshs 729,000/. The Tenant on his part does not deny being in arrears but states that it is not in arrears of six months.

b. The Tenant further states that it has not refused to pay rent but requires to be given a correct account of the rental arrears after which the Tribunal is to give it a structural payment plan.

c. I understand the Tenant to be blaming the covid pandemic for its inability to pay rent on time. The Landlord has stated in his affidavit that the outstanding rent had been mutually agreed between the parties and has attached correspondence to that effect. The Landlord in his further affidavit at paragraph 4 has stated that on 23rd June 2021, the Tenant paid Kshs 121,500/- being the rent for one month which left a balance of Kshs 607,500/- and which the Landlord wishes to recover from the Tenant/Respondent. The Tenant has not challenged this particular averment in the Landlord’s further affidavit.

d. The Tenant has annexed some receipts in evidence of payment of what he calls “Payments towards clearing the rental arrears.” The said documents show that an amount of Kshs 364,500/- or thereabouts had been paid by April 2021. The documents do not sufficiently answer the Applicant’s claim of Kshs 607,500/-.

e. I therefore do find that on a balance of probability, the Applicant/Landlord has proven that the Tenant indeed is in rent arrears of Kshs 607,500/-. The right of the Landlord to levy distress for rent is provided for under section 3 of Cap 293 which is in the following terms;

“Subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrear and due upon a grant, lease, demise or contract shall have the same remedy by distress for the recovery of that rent or rent service as is given by the Common Law of England in a similar case.”

f. The only requirement for this right to crystalize is therefore the existence of rent arrears. in the instant case, the Tenant does not deny being in rent arrears and the Landlord is therefore entitled to exercise the right of distress without hindrance.

8. I allow the application dated 18th March 2021 in terms of prayer 2 and 4 of the application save to correct the figure under paragraph 2 to read Kshs 607,500/- instead of Kshs 729,000/-.

9. The Landlord will have the costs of the application.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered by Hon Cyprian Mugambi Nguthari this 12thday of January, 2022 in the presence of Mr Wamitifor theLandlordand in theabsence ofthe Tenantand counsel.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL