[2024] KEBPRT 817 (KLR)

Edam Enterprises Ltd v Bayusuf (Tribunal Case E0190 of 2023) [2024] KEBPRT 817 (KLR) (26 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 817 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E0190 of 2023

J Osodo, Chair & Gakuhi Chege, Member

January 26, 2024

Between

Edam Enterprises Ltd

Applicant

and

Anwar Mohamed Bayusuf

Respondent

Ruling

A. Dispute Background. 1. The applicant herein moved this tribunal vide a Notice of Motion under a Certificate of Urgency dated 8th August, 2023 in which the tenant/applicant sought the following orders; -i.That the application be certified as urgent.ii.That the landlord/respondent, their agents or servants be ordered to open the yard and allow the applicant, their driver to access the premises situate at Jomvu area in order to run their transport business.iii.That the OCS Mikindani Police Station does provide security during the exercise.iv.That the costs of the application be borne by the respondent.

2. The tenant/applicant filed a supporting affidavit of even date wherein it is deposed as follows; -i.That the tenant’s premises is a yard attracting a monthly rent of ksh 17,000. Rent payment statements are annexed as “EM1”.ii.That on 4th August, 2023 without any apparent reason, the respondent locked the yard’s gate and informed the tenant’s drivers that they are not allowed in the yard.iii.That the yard contains the following goods of trade; 20ft container, 40ft container with 32 tones of table salt, 40ft container with plywood, Prime mover registration number KBH XXXN, white Mercedes Benz axle, Trailer registration number ZC XXXX, prime mover registration number KBU XXXN and green Mercedes Benz actros.iv.That since the respondent locked the suit premises, the applicant/tenant has not been able to carry out his business and is suffering losses.

3. On 16th August, 2023, the court issued interim orders pending inter-partes hearing.

4. The application is opposed vide a replying affidavit dated 23rd August, 2023 in which the landlord/respondent deposes as follows; -i.That the tenant pays rent depending on the number of motor vehicles and sizes of motor vehicles in the yard and the rent is calculated daily depending on the motor vehicles parked as stated.ii.That indeed the tenant was in rent arrears for which distress for rent was carried out and the rent owing as at the time of the distress was already recovered.iii.That the outstanding rent as at the date of filing this suit was ksh 45,609. 00 and that tenant can comfortably remove its motor vehicles upon paying the rent due.iv.That there was a pending suit on the same subject matter before the High Court in Mombasa HCCC no E050 of 2023; Edam Enterprises Limited v Anwar Mohmed Bayusuf Limited, which is scheduled for ruling on 20th September, 2023. v.That the tenant has irregularly filed a Notice of Withdrawal of the High Court suit dated 13th August, 2023. A copy of the Notice of withdrawal is annexed “AM-3” and “AM-4”.vi.That if the tenant pays up the ksh 45,609. 00 owing, they can remove the motor vehicles and vacate the yard.

5. The tenant/applicant filed a further affidavit dated 20th September, 2023 in which he deposes as follows; -i.That the landlord/respondent served the tenant with an illegal notice to vacate the suit premises dated 20th September, 2023. The copy of the said notice is annexed as “EM”.ii.That the tenant is not in arrears as the landlord/respondent has not stated the months to which the said rent arrears relate.iii.That the landlord has not opened the premises and is still holding the tenant’s tools of trade despite the court order causing the tenant/applicant damages to a tune of ksh 500,000. iv.That in the interest of justice, the landlord/respondent `be punished for contempt of court orders and be compelled to pay the tenant the losses of ksh 500,000.

6. Both parties filed their submissions which we will consider alongside all the other court documents as we deal with the issues for determination.

B. Issues for Determination 7. The main issues for determination are; -a.Whether the instant suit ought to be struck out on account of the existence of a similar suit filed in another court.b.Who shall bear the costs of the application?

Issue (a) Whether the Instant Suit Ought to be Struck Out on Account of Existence of a Similar Suit Filed in Another Court. 8. The landlord respondent in his replying affidavit dated 23rd August, 2023 has revealed that this matter is pending before the High Court in Mombasa HCCC no E050 of 2023; Edam Enterprises Limited v Anwar Mohmed Bayusuf Limited. A copy of the Plaint dated 3rd July, 2023 has been filed as evidence and is annexed “MAIJ-2(a)”.

9. In addition to this, the respondent/landlord has also revealed in his written submissions that the same matter has been filed at the subordinate court, to wit SRMCC no E983 of 2023; Edam Enterprises Limited v Ndutumi Auctioneers & Anwar Mohamed Bayusuf Limited. A copy of the 1st and 2nd Defendants Written defense dated 18th September, 2023 has been filed as evidence.

10. The tenant/applicant herein has not denied the above claims and states as follows in his Further Affidavit dated 20th September, 2023; -“9. That as for the other suits the same was withdrawn that’s HCC no E050 of 2023. ”

11. On record is a Notice of Withdrawal of the suit at the High Court dated 13th August, 2023, however there is no evidence to show that the said notice was received in the high court, neither is there evidence submitted to show that the matter has been ordered as withdrawn by the High court.

12. In light of this disclosure, this tribunal shall not continue to entertain this matter as it has already been filed in 2 other courts with no sufficient evidence of withdrawal. Therefore, we shall make an order to strike out this matter with costs.

Issue (b) Who Shall Bear the Costs of the Application? 13. As regards costs, the same are in the Tribunal’s discretion under Section 12(1)(k) of cap 301, but always follow the event unless for good reasons otherwise ordered. We shall award costs to the respondent/landlord.

C. Orders 14. In conclusion, the following orders commend to us; -a.This matter is hereby struck out with costs.b.Costs of ksh 15,000 to the landlord/respondent.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 26th JANUARY 2024HON. JOYCE AKINYI OSODO(PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGE(MEMBER)In the presence of:Makau for Landlord /respondent.No appearance for Tenant.