[2022] KEBPRT 242 (KLR)

Ben Okeyo Owour T/A Bensylin Community Development v Meems Limited (Tribunal Case E17 of 2021) [2022] KEBPRT 242 (KLR) (Crim) (21 July 2022) (Ruling)

Neutral citation: [2022] KEBPRT 242 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Criminal

Tribunal Case E17 of 2021

P May, Vice Chair

July 21, 2022

Between

Ben Okeyo Owour T/A Bensylin Community Development

Applicant

and

Meems Limited

Respondent

Ruling

1. The tenant approached the tribunal by filing the reference which was received on the September 13, 2021. Contemporaneous with the reference the tenant filed a notice of motion application dated September 10, 2021. This ruling shall determine the said application.

2. The application sought for orders to have the demised premises reopened and orders of temporary injunction. The application is premised on the grounds set out on the face of the application and the supporting affidavit sworn by the applicant.

3. The application has been opposed vide the replying affidavit sworn on the September 28, 2021. The parties elected to canvass the application by way of written submissions. I will summarize the case for the respective parties as hereunder:

Tenant’s case: 4. The tenant contends that he has been in occupation of the demised premises paying a monthly rent of Kshs 13,000. He admits that he is in rent arrears. He however stated that the advent of the Covid 19 pandemic in 2020 which had adverse effects of his business operations. He maintains that the he has always had good relationship with the landlord.

Landlord’s case 5. From the onset , the landlord has stated that the tenant is in breach of his obligation to pay rent. They have attached a statement of account which reveal that the tenant has accrued rent arrears to the tune of Kshs 335,579/-. The landlord has stated that the tenant is using the present proceedings to derail their efforts to recover the rent arrears due.

Analysis: 6. The present dispute stems from the process of levying distress that had been commenced by the landlord. This being the central issue, the tribunal shall proceed to determine the same in the following manner.

7. The right of distress is provided for under section 3(1) of the Distress for Rent Act Cap 293 which provides as follows;“Subject to the provisions of the Act and any other written law, any person having any rent or rent service in arrears 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.”

8. The only requirement for the crystallization of the right to distress by a landlord therefore is the existence of “rent or rent service in arrears and due.”

9. It is therefore beyond doubt that the tenant herein was in arrears of rent at the time the landlord sought to levy distress. Indeed, the tenant in his supporting affidavit does not seem to deny being in arrears. I therefore find that the landlord’s right to levy distress for rent had crystalized and he was within his rights so to do.

10. It is however imperative to state that the process of levying distress for controlled tenancy requires the landlord to seek leave of the tribunal as per the provisions of section 12(h) of Cap 301. Even though the tenant is in default, the landlord had a recourse within section 7(b) requires the landlord to move under section 4 (issue notice to terminate tenancy) if the tenant has defaulted in paying rent for 2 months or has persistently delayed paying when its due and payable.

11. In seeking to make the appropriate orders in view of the foregoing, I am guided by section 12(1)(e) of Cap 301 which grants the tribunal power;“To make orders upon such terms and conditions as it thinks fit for the recovery of possession and for the payment of arrears of rent and mesne profits which orders may be applicable to any person whether or not he is a Tenant, being at any material time in occupation of the premises comprised in a controlled tenancy.”

12. Be as it may the tenant does not deny owing rent and the figure stood at 272,097 as at November 24, 2021. He states that the covid 19 pandemic was a major undoing however it is evident from the record that the default started long before the pandemic.

13. In the interest of justice this tribunal must not close its eyes on the arrears due to the landlord merely due to the fact that the landlord did not seek for leave before proclaiming the goods. The tenant has not offered any plausible proposal on how they wish to offset the rent arrears.

14. That said it is incumbent upon this court to do justice to parties and not lay too much emphasis on technicalities it is on this ground that the tribunal addresses itself to the issue of the arrears in the manner herein under enumerated.

15. In the end, the orders that commend themselves are as follows:a.The tenant shall pay the outstanding rent arrears within 30 days. In default the landlord shall be at liberty to levy distress for rent.b.The shall continue to pay the agreed monthly rent as when it falls due.c.The reference is compromised under similar terms.d.Each party shall bear its own costs.It is so ordered.

RULING SIGNED, DATED AND DELIVERED THIS 21ST DAY OF JULY 2022. HON P MAYVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the absence of the parties.