[2022] KEBPRT 819 (KLR)

Interstate Trade Company Limited v Registered Trustees of Catholic Archdiocese of Mombasa (Tribunal Case E093 of 2021) [2022] KEBPRT 819 (KLR) (Civ) (4 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 819 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E093 of 2021

Andrew Muma, Vice Chair

November 4, 2022

Between

Interstate Trade Company Limited

Applicant

and

Registered Trustees of Catholic Archdiocese of Mombasa

Respondent

Ruling

Parties And Their Representative 1. The applicant/tenant Interstate Trade Company Limited (hereinafter referred to as the “tenant”) has been in occupation of the premises of the respondent the subject of this suit pursuant to a verbal tenancy agreement entered into in April 2021.

2. The firm of Mogaka Omwenga & Mabeya Advocates represents the tenant in this matter.

3. The respondent/landlord, the Registered Trustees of Catholic Diocese of Mombasa (hereinafter referred to as the “landlord”) is the owner of the premises known as MI/1/98 rented out to the tenant.

4. The firm of J S Kaburu & Company Advocates represent the landlord in this matter.

The Dispute Background 5. The landlord and the tenant entered into a verbal tenancy agreement in April 2021 and agreed that the tenant would renovate the premises and recoup his renovation expenses by not paying a one-year rent.

6. The landlord however reneged on this agreement, storming into the demised premises on October 10, 2021, seeking to evict the contractors carrying out the renovations. The landlord contended that they did not consent to the ongoing renovations.

7. This caused the tenant to move this tribunal by way of a reference and a notice of motion application dated November 11, 2021 pursuant to section 12(4) of the Landlord and Tenant (Shops, Hotels, and Catering Establishment) Actchapter 301 laws of Kenya. The tenant sought re-entry into the demised premises, as well as restraining orders against interference with their quiet enjoyment of the tenancy by the landlord. These prayers were granted by the tribunal pending the determination of the reference substantively on November 11, 2021.

8. The landlord on his part, filed a replying affidavit dated January 20, 2022, disputing in principle, any agreement to recover renovation costs by the tenant. They maintained that they had not consented to the renovations and sought this tribunal to evict the tenant. They regraded the tenant as trespassers.

9. The issues that begged the intervention of this honourable tribunal therefore was whether there was an agreement to recover renovation costs, and consequently if so, whether the tenant is entitled to the orders sought under their application dated November 11, 2021. Parties canvassed this issue, and a ruling was delivered on by this honourable tribunal on the March 25, 2022, allowing the tenant’s case in the following terms;a.The tribunal upholds the terms of the tenancy agreement between the tenant and the landlord to the extent that the tenant shall recover the costs incurred for renovation of the premises.b.In light of order (a) above, the tenant shall prepare the accounts for their costs incurred in renovation of the premises for the stated period together with submissions and serve the same upon the landlord within 30 days. The landlord shall respond to the both documents within 15 days upon service.c.The landlord is restrained from interfering with the occupation of the premises by the tenant as well as the carrying out of the renovation.d.Compliance and assessment on May 17, 2022e.Costs in the cause.

10. This tribunal is therefore tasked with assessing the costs incurred by the tenant and the rival response from the Landlord filed therein

List Of Issues For Determination 11. The issue before this honourable tribunal is;Whether the tenant’s renovation expenses are justified and if so how much?.

Analysis And Findings Whether the tenant’s renovation expenses are justified and if so how much? 12. The tenant has filed an affidavit for production of his total expenditure for the renovation of the premises. He has also produced his total expenditure for the renovations. The tenant filed submissions dated April 8, 2022 to urge his position.

13. The tenant has detailed the renovation expenses, asserting that the same has accumulated to a tune of Kshs 3,511,420. 00. The tenant has however deducted the amount used in the purchase of the furniture, a total of Kshs 704,000. 00. The tenant’s net cost of renovation therefore is Kshs 2,807 420. 00. This the total amount, the tenant submits, is the cost of renovation.

14. The landlord has not whatsoever opposed or controverted the tenant’s expenses as stated. They have neither responded nor filed submissions in respect of the said amount. To this end therefore, the amount claimed by the tenant is unchallenged.

15. In support of his case, the tenant has also filed a bundle of receipts and exhibits, exhibiting how the expenses were incurred. According this tribunal finds as proved the tenant’s claim for Kshs 2,807,420. 00 as the net costs of renovation of the premises. Even then, this tribunal will stick to the contract between parties in which the rent payable viz as viz the renovation expenses were to be capped at one a year rent amount. In any event some costs like gardening appear to be unjustified.

Ordera.The upshot is that the tenant’s reference is settled in the following termsb.The tenants cost of renovation is capped at Kshs 1,200. 000. 00. For the record, the tenants have been in the premises from April 2021, therefore, their free stay ended sometimes in April 2022. c.The tenant to pay Kshs 700,000. 00 being the rent arrears by the November 30, 2022. In default, landlord at liberty to ley distress and to commence eviction proceedings.d.The tenant to pay rent of Kshs 100,000. 00 going forward and on or before the 5th day of every month.

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALJUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 4TH DAY OF NOVEMBER 2022 IN THE PRESENCE OF OMWENGA FOR THE TENANT AND IN THE ABSENCE OF THE LANDLORDHON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL