[2020] KEBPRT 60 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 83 OF 2019 NAIROBI

JAMES NJOROGE NJUGUNA T/A

J.N. NJUGUNA & CO ADVOCATES....................TENANT/APPLICANT

VERSUS

NATIONAL BANK OF KENYA LTD....LANDLORD/1ST RESPONDENT

SEDCO CONSULTANTS LIMITED...........AGENTS/2ND RESPONDENT

RULING

The applicant/Tenant on 11th September 2019 filed a reference under section 12 (4) of Cap 301 against the Respondent in the above reference. The Tenant/Applicant on the same date also filed a notice of motion under a certificate of urgency seeking to restrain the Landlord and his agents and in particular Desire Recovery Auctioneers from proceeding to levy distress and recover outstanding arrears of rent and service charge pursuant to their proclamation dated 7th September 2019. The amount which was sought to be recovered as per the aforesaid proclamation is shs 1,111,980.

The Tribunal upon hearing the advocate for the Tenant/Applicant and upon perusal of all the pleadings in this matter issued interim orders on 12th September 2019 which orders are still in force.

The first Respondent/Landlord in this matter on 7th October 2019 filed a comprehensive replying affidavit in this matter sworn by Albin Sigei. The Tenant/Applicant filed a supplementary affidavit on 29th October 2019.

The advocates of the parties have filed written submissions together with a list of authorities. The Tribunal upon consideration of the written submissions and all the authorities attached in the submissions and upon consideration of all the pleadings in this matter makes the following findings;

1. The core dispute in this reference is in respect of arrears of rent and service charge.

2. The Tenant has denied that he is in arrears of rent or service charge.

3. A Landlord has a statutory and a common law right to levy distress and recover arrears of rent and rent service in accordance with the provisions of section 3 of the Distress for Rent Act (Cap 293).

4. The Distress for Rent Act Cap 209 is also applicable to controlled tenancies and it is not mandatory for a landlord in a controlled tenancy to seek leave of the Tribunal. The law is now settled on this issue.

5. The Tribunal is satisfied on the pleadings that the tenancy between the Tenant and the Landlord herein is a controlled tenancy within the meaning of section 2 of Cap 301. The Landlord has not exhibited a current lease which has been executed by the Tenant for a period exceeding 5 yearssince expiry of the lease which was executed by the parties.

6. The parties have had other cases before the Tribunal on the issue of rent and service charge which have not been resolved.

7. The Tribunal is satisfied that to recover the dispute between the Tenant and the Landlord in this matter once and for all there is need to take oral evidence between the parties.

The Tribunal in the light of the above findings is satisfied that the Tenant has established a prima facie case with a probability of success and the Tribunal makes the following orders;

1. The Tenant’s application dated 11th September 2019 is allowed in terms of prayers 2 and 3 of the notice of motion.

2. The costs of the application shall abide the outcome of the reference dated 11th September 2019.

3. The Tenant/Applicant shall continue to pay the undisputed rent pending the hearing and determination of the reference.

4. The reference dated 11th September 2019shall be heard and be determined by the Tribunal within 90 days from the date hereof by way of oral evidence.

5. The interim orders issued in this matter shall only remain in force for 90 days.

6. The parties shall fix the reference for hearing at Kisumu, Kakamega or Nairobi within the said 90days.

Ruling dated and delivered this 21stday of February 2020 in the presence of Kipropholding brief for Githaiga for the Respondent, Mugambi for the Tenant/Applicant.

Further Orders by Consent of the Parties:

1. The reference shall be heard on 16th March 2020 at Kisumu.

MBICHI MBOROKI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL