[2019] KEELC 128 (KLR)
The court found that the Chairman of the Business Premises Tribunal erred by failing to consider the joint valuation report prepared by Premier Valuers Limited, which was procured by consent of both parties as directed by the Tribunal. The failure to consider this report amounted to a misdirection in the exercise of...
Source-derived case information.
- Citation
- [2019] KEELC 128 (KLR)
- Parties
- Appellant: Pabari Harikrishna Premji T/A Pramuk Supplies; Respondent: Velji Khimji Maroo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 16 of 2019
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal allowed in part; matter remitted to BPRT for determination of rent based on joint valuation report.
- Legal Topics
- Controlled Tenancy, Rent Determination, Valuation Reports, Business Premises Tribunal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pabari Harikrishna Premji T/A Pramuk Supplies
Appellant
Velji Khimji Maroo
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the Business Premises Tribunal erred in failing to consider the joint valuation report in determining the rent payable.
- 2 Whether the Tribunal exercised its discretion properly in varying the rent based only on the landlord's valuation.
Ratio Decidendi
The court found that the Chairman of the Business Premises Tribunal erred by failing to consider the joint valuation report prepared by Premier Valuers Limited, which was procured by consent of both parties as directed by the Tribunal. The failure to consider this report amounted to a misdirection in the exercise of the Tribunal's discretion. Consequently, the court set aside the Tribunal's decision on rent determination and remitted the matter back to the BPRT for the sole purpose of determining the rent payable based on the joint valuation report.
Court Disposition
Appeal allowed in part; matter remitted to BPRT for determination of rent based on joint valuation report.
Orders
- The files are returned to the Business Premises Tribunal for the sole purpose of determining the rent payable based on the joint valuation undertaken by Premier Valuers Limited.
- The Tribunal is to consider the joint valuation report dated 5/9/2016 in making its determination.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC APPEAL NO. 16 OF 2019
PABARI HARIKRISHNA PREMJI
T/A PRAMUK SUPPLIES…….……………………….…...APPELLANT
VERSUS
VELJI KHIMJI MAROO…………………….………….RESPONDENT
JUDGEMENT
1. This appeal was heard with ELC Appeal 17 of 2019 on 27/05/2019. The appeals arose from the ruling of the Business Premises Tribunal (BPRT) Case Numbers 399 and 400 of 2015delivered in Nairobi on 24/06/2017 by the Honourable Mbichi Mboroki, Chairman of the BPRT. In the references filed by the tenants before the BPRT dated 22/06/2016, the tenants, who are the Appellants in the these appeals opposed the landlord’s notice dated 24/04/2015 which sought to alter the terms of tenancy by increasing the monthly rent from Kshs. 50,000/= to Kshs. 120,000/= with effect from 1/07/2015 for the premises known as L.R 209/4583 Kombo Munyiri Road, Nairobi; and an increase in rent from Kshs. 70,000/= to Kshs. 120,000/= for the property occupied by Shreeji Ceramics, being the appeal in ELC Appeal No.17 of 2019.
2. The main ground for challenging the BPRT Chairman’s decision was that he failed to consider the tenant’s valuation report as well as the landlord’s joint report which was filed by consent of both parties. The Appellant submitted that the BPRT Chairman ordered the preparation of a joint valuation, but only considered the landlord’s valuation in arriving at his decision, yet the lettable area under the joint valuation report differs substantially from that in the landlord’s valuation. The Respondent submitted that the consent applied to the measurement of the comparables in both reports.
3. Under Section 12 (1) (b) of Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, one of BPRT’s mandate is to determine or vary the rent to be payable in respect of any controlled tenancy, having regard to all the circumstances. The method to be employed by the Tribunal to determine the rent payable is not prescribed giving the BPRT a wide discretion over this aspect of its mandate. This court is alive to the fact that it should not disturb the exercise of discretion of the lower court on an appeal unless it is satisfied that the judge misdirected himself.
4. The Chairman of the BPRT directed parties to procure a joint valuation, which he failed to consider in making his determination. The court returns the two files to the BPRT for the sole purpose of determining the rent payable based on the joint valuation undertaken by Premier Valuers Limited who prepared the report dated 5/9/2016.
Dated and delivered at Nairobi this 13th day of December 2019
K.BOR
JUDGE
In the presence of:-
Ms. N. Mwangi holding brief for Mr. K. Opiyo for the Appellant.
Mr. K. rono holding brief for Mr. Kithinji for the Respondent.
Mr. V. Owuor- Court Assistant