[2024] KEBPRT 684 (KLR)

Erotekt (Kenya) Limited v Oketch (Tribunal Case E064 of 2023) [2024] KEBPRT 684 (KLR) (5 March 2024) (Ruling)

Neutral citation: [2024] KEBPRT 684 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E064 of 2023

N Wahome, Member

March 5, 2024

Between

Erotekt (Kenya) Limited

Applicant

and

Mary Adhiambo Oketch

Respondent

Ruling

1. This Ruling is on the Application dated 14. 2.2024 by the Tenant/Applicant. It is said to be brought under Section12(1)(i) of the Landlord, Tenant (Shops, Hotels and Catering Establishments Act) Cap 301 of the Laws of Kenya. The prayers sought in the Application are;-i.That the Application be certified urgent in the first instance and the same be heard on a priority basis.ii.That pending the hearing and determination of this Application, this Honourable Tribunal be pleased to order stay of execution of the orders made by Hon. Ndegwa Wahome on the 2nd February, 2024. iii.That pending the hearing and determination of the intended Appeal herein, this Honourable Tribunal be pleased to stay the execution of the orders of Hon. Ndegwa Wahome dated 2nd February, 2024. iv.That costs of this Application be provided for.

2. The main grounds upon which the Application is anchored are that;-a.The intended Appeal which has since been filed being Kisumu ELCA No. E038 of 2024 had very high chances of success.b.That the notice of termination of the tenancy dated 4. 10. 2023 violated section 9(3) of Cap 301. c.The court did not judiciously exercise its discretion in its Ruling dated 2. 2.2024. d.The decided cases of;i.Wilson vs Church (No.2) CL.D [1879]; andii.National Dry Cleaners Ltd & Another vs Ndunge [1978] EKLR.

3. In opposition to the Application, the Landlady/Respondent filed grounds of opposition dated 23. 2.2024 and the Replying affidavit of even date. The main grounds for opposing the Application are that;-a.The Application is totally defective, hopelessly misconceived, frivolous, totally devoid of merit and malafides.b.That the Applicant had failed to extract the order sought to be stayed and file it with the Application.c.The Application was merely meant to delay the Applicant enjoying the fruits of her judgment.d.That the Applicant had not filed an Appeal and had not satisfied the requirements of order 42 Rule 6(2) on grant of stay orders.

4. Both Counsels rendered their respective oral submissions in support of their positions and I have taken full cognizance of the same. This Application is founded on Section 12(1)(i) of Cap 301 which provides that;-“That a Tribunal shall have power to vary or rescind any order made by the Tribunal under the provisions of this Act.”

5. It is plain from the Application that the Applicant has not sought for varying or rescinding of the orders made on the 2. 2.2024. The Applicant has instead sought that the orders be stayed pending the filing of an Appeal which has since been filed and is Kisumu ELC Appeal Case No. E038 of 2024 and until its hearing and determination .

6. I do believe that in filing the said Application, the Applicant intended to invoke the provisions of order 42 Rule 6(2) which provides for the pre-requisites for the grant of the orders of stay. The same provides that;-“No order of stay of execution shall be made under subrule (1) unless-a.The court is satisfied that substantial loss may result to the Applicant unless the order is made and that the Application has been made without reasonable delay; andb.Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.”

7. I recognize that this Application was filed barely twelve (12) days after the delivery of the impugned Ruling and was therefore without doubt within reasonable time. I however doubt that non-grant of the order of stay herein would occasion the Applicant substantial loss as claimed. The loss the Applicant indicates he is likely to suffer in case the orders of stay are not granted is for Kshs. 8,009,000/=.

8. The Applicant had raised the same issue in the hearing hereof and I dismissed the same. My reasons for the dismissal were that the purported expenditure was incurred in breach of the lease agreement dated 1st March, 2019 between the parties. Indeed my sister Hon. Patricia May in BPRT Case No. 43 of 2020 made a determination that the developments if any at all were made in breach of the lease agreement aforesaid. This position was upheld by the Kisumu ELC Court in Appeal No. 71 of 2021 by Justice E. Asati.

9. The Applicant cannot purport to incur substantial losses on the developments orchestrated without the consent of the landlady and in breach of the lease agreement dated 1st March, 2019. I therefore cannot see any decipherable loss that is capable of being suffered by the Applicant.

10. The Applicant in seeking for the orders herein claims that this court went off the mark in its decision as it never took cognizant of Section 9(3) of the Act and the decision of Hon. Patricia May in BPRT Case No. 43 of 2020. In her decision Hon. May determined and ordered that;-“The notice to vacate dated 15. 10. 2020 is hereby dismissed. The landlady shall be at liberty to issue a fresh notice of termination that conforms with the provisions of Cap 301. ”

11. The applicable provisions of Cap 301 as alluded to by Hon. May in her Ruling dated 8. 9.2021 was section 9(3). The same provides as follows;-“(3)where a Tribunal has made a determination upon a Reference, no further tenancy notice shall be given in respect of the premises concerned, which is based on any of the matters affected by the determination-a.In the case of an assessment of rent, until the expiration of two years;orb.In any other case, until after the expiration of twelve months after the date of the determination unless the Tribunal at the time of the determination, specifies some shorter period.”

12. The Ruling of Hon. May was on the 8. 9.2021 and the fresh notice of termination was dated 5. 10. 2022. This was well after the expiry of 12 months as provided for under the Act and as directed in the Ruling in BPRT Case No. 43 of 2021. It then follows that the said notice of termination dated 5. 10. 2022 was compliant with the law and the court orders aforesaid.

13. On whether the Appeal has high chances of success, I decline the invitation to address the issue. It is an unnecessary principle in considering the grant of stay orders.

14. In the final analysis, the orders that commend to me are the following;-a.That the Application dated 14. 2.2024 is dismissed.b.That the Applicant will pay to the Respondent costs assessed at Kshs. 10,000/=.Those are the orders of the court.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 5TH DAY OF MARCH, 2024. HON. NDEGWA WAHOME, MBSMEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Wachakana for the Tenant/Applicant and Mr. Ongoro for the Landlady/Respondent