[2022] KEBPRT 124 (KLR)
The tribunal found that the lease agreement, by providing for early termination and payment of goodwill and damages, did not constitute a strictly fixed term lease that would oust its jurisdiction. Therefore, the tribunal has jurisdiction to hear and determine the dispute. Additionally, given that the effects of the...
Source-derived case information.
- Citation
- [2022] KEBPRT 124 (KLR)
- Parties
- Tenant: Midlands Zero Thirty Three Hotel LLP; Landlord: Moriaso Ole Kindi
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 75 of 2020
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Jurisdiction and Interim Rent Review
- Outcome
- Tribunal affirms jurisdiction and issues interim rent review order.
- Legal Topics
- Business Premises Rent, Jurisdiction of Tribunal, Fixed Term Lease Interpretation, Rent Review, Covid 19 Rent Adjustment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Midlands Zero Thirty Three Hotel LLP
Tenant
Moriaso Ole Kindi
Landlord
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Jurisdiction and Interim Rent Review
Legal Issues
- 1 Whether the Business Premises Rent Tribunal has jurisdiction over the dispute given the existence of a fixed term lease.
- 2 Whether the rent should be reviewed upwards in light of reduced covid-19 effects pending hearing of the reference.
Ratio Decidendi
The tribunal found that the lease agreement, by providing for early termination and payment of goodwill and damages, did not constitute a strictly fixed term lease that would oust its jurisdiction. Therefore, the tribunal has jurisdiction to hear and determine the dispute. Additionally, given that the effects of the covid-19 pandemic have reduced, the tribunal ordered an interim upward review of rent to Kshs 180,000 per month, pending the hearing of the reference, while maintaining the status quo on all other matters.
Court Disposition
Tribunal affirms jurisdiction and issues interim rent review order.
Orders
- Reference dated 21st May 2020 to be fixed for hearing within 90 days.
- Rent reviewed upwards to Kshs 180,000 per month pending hearing of the reference.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE BUSINESS PREMISES RENT TRIBUNAL
TRIBUNAL CASE NO. 75 OF 2020 (NAKURU)
MIDLANDS ZERO
THIRTY THREE HOTEL LLP………….……………………………TENANT
AND
MORIASO OLE KINDI……………..…………….………………LANDLORD
RULING
1. The Tenant herein filed a reference dated 21st May 2020 stating there was an agreement to charge rent at Kshs 100,000/- and the Landlord has since increased the same to Kshs 360,000/- and is threatening to send auctioneers. The said review downwards was due to covid 19 pandemic.
2. Interim reliefs orders were obtained on 21st May 2020 and the same are in force today being Landlord to interfere and payment of Kshs 100,000/- as rent per month
3. I have had the liberty to look at all the pleadings filed and in particular the fixed term lease of 12 years which the Landlord argues ousts my jurisdiction dated 3rd December 2018.
4. In particular, I have looked at clause No 2(i)(j) which states, in event of termination of this lease before the expiry of the term hereby created a sum of (Kshs 5,000,000) being goodwill will be paid to the lessee and such general and special damages for breach of contract.
5. My interpretation of the clause above is that the lease contemplates early termination and as such brings it under the jurisdiction of this Tribunal as it is not a fixed term lease. I therefore find I have jurisdiction to deal with this dispute.
6. As such, I order as follows;
a.Reference dated 21st May 2020 be fixed for hearing within 90 days.
b.Rent be reviewed upwards since effects of covid 19 have reduced to Kshs 180,000/- per month without prejudice to the lease terms pending the hearing of the reference.
c.All other status quo except for 2 above be maintained.
HON A. MUMA
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
Ruling dated, signed and delivered virtually by Hon A. Muma this 4thday ofJanuary 2022 in the presence of Ms Kamau for theTenant and in the absence of the Landlord.
HON A. MUMA
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL