[2022] KEBPRT 805 (KLR)

Salat v Bare (Tribunal Case 72 of 2019) [2022] KEBPRT 805 (KLR) (11 October 2022) (Judgment)

Neutral citation: [2022] KEBPRT 805 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 72 of 2019

Andrew Muma, Vice Chair

October 11, 2022

Between

Abdirahaman Siyat Salat

Landlord

and

Farah Ali Bare

Tenant

Judgment

1. The Tenant/Applicant, Farah Ali Bare (hereinafter the “Tenant”) has been in occupation of the Premises belonging to the Landlord/Tenant referred to as Plot No 1697 Rongo-Kamagambo/ Kabuoro (hereinafter the “suit premises) since the year 2016.

2. The Firm of Agure Odero & Company Advocates is on record for the Tenant.

3. The Landlord/Respondent, Abdirahaman Siyat SALAT (hereinafter the “Landlord”) is the registered owner and Landlord of the Premises referred to as Plot No 1697 Rongo-Kamagambo/ Kabuoro rented out to the Tenant/Applicant.

4. The Firm of Ondieki Orang’i & Company Associates is on record for the Landlord.

The Background of the Dispute 5. It is not in dispute that in the year 2016, the Landlord and the Tenant entered into Tenancy Agreement in which the Tenant occupied the suit premises and paid monthly rent of KShs 100,000. 00. The Tenant occupied premises peacefully until the year 2019.

6. On May 31, 2019, the Landlord duly served the Tenant with a Notice to terminate the Tenancy in line with Section 4 (2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, CAP 301 Laws of Kenya, which notice was to take effect on August 1, 2019.

7. The grounds for termination of the Tenancy were that the Tenant had defaulted in payment of rent for a period of 16 months prior to the issuance of the notice, and which default amounted to arrears of Kenya Shillings Two Million, Three Hundred and Ninety-One Thousand (KShs 2,391,000. 00).

8. Subsequently and upon expiry of the notice period to the Tenant, the Landlord filed a Reference dated August 16, 2019, before this Honorable Court seeking for orders inter alia: that this Honourable Court be pleased to authorize the Landlord to proceed and evict the Tenant from the suit premises, as the notice period had lapsed and the Tenant had not filed any Reference against the Landlord’s Notice to this Honourable Court.

9. On October 11, 2019, the matter came up for hearing and my brother Hon Mbichi as he then was the Chairman, issued the following orders:i.That the landlord be and is hereby allowed to levy distress and recover outstanding arrears of Kenya Shillings Two Million, Three Hundred and Ninety-One Thousand (KSHs 2,391,000. 00).ii.That the landlord be and is hereby allowed to evict the tenant from the suit premises and later take possession of the same in the presence of the OCS Rongo Police Stationiii.That the tenant/Respondent shall pay the landlord application cost assessed to Kenya Shillings Fifty Thousand (KShs 50,000. 00).iv.That payment of further Court fees is waived in the circumstance of the case.v.That the Tenant shall pay auctioneer charges.vi.That the OCS Rongo Police Station shall ensure compliance.

10. Subsequently, vide a Notice of Motion Application filed by the Tenant on February 27, 2020, and accompanied by a Supporting Affidavit sworn by the Tenant, Farah Ali Bare, on the even date, the Tenant sought the following ordersi.That the Application be heard at the 1st instance.ii.That this Honourable Court be pleased to order for stay of execution by the Landlord, pending hearing of this Application inter partes.iii.That upon granting the prayer No 2 above, this court be pleased to review its order dated October 11, 2019 and set aside the subsequent orders thereof, to allow taking of Accounts of the whole rent paid by the Applicant against the Respondents receipt thereof.iv.That there be an order to set aside the matter, and the case to be heard afresh as there was apparent error on the face of records.v.Costs of the Application.

11. The Application came up for hearing on March 2, 2020 and this Honourable Court certified the Application urgent and the Tenant directed to serve the Respondent for inter partes hearing.

12. The matter was mentioned on April 12, 2021, August 19, 2021 and September 15, 2021. However, there was no appearance by the Landlord or his counsel despite proof of service being tendered in Court by Counsel for the Tenant. Consequently, the parties were directed to file and serve written submissions and the matter was scheduled for Ruling on October 21, 2021.

13. The Court pronounced itself on the matter and reviewed its earlier orders thus required the parties to file statements of accounts on the arrears and the matter was fixed for Judgement on October 11, 2022.

Jurisdiction 14. The Jurisdiction of this Tribunal is not in dispute.

Issues for Determination 15. Having considered the parties’ pleadings, affidavits and submissions and having considered the relevant legal framework, the following are the main issues that fall for determination before this Honourable Court:I. Whether the Tenant can reopen the issues raised in the application of October 11, 2019?

Analysis and Determination 16. Having already pronounced itself previously on this matter. The Tribunal is of the opinion that the only matter left for determination is with regards to the reference. The Tribunal observes that upon issuance of the orders of October 11, 2019, the Landlord proceeded to execute and levied distress for rent as ordered. The Landlord has presented that they proclaimed the Tenant’s goods and advertised them for sale.

17. As a result, the Tribunal observes that the stayed orders of October 11, 2019 were already overtaken by events. The Tenant moved the Tribunal in February 2020 and got no orders, instead, the matter was fixed for hearing in March 2020 in Kisii.

18. The Tribunal thereafter issued a Ruling on the same in November 2021, which was over one year later. The sub stratum had gone via the orders issued by the chair on October 11, 2019 which were never stayed and execution proceeded rightfully so.

19. Any reopening of the issues herein will be an academic exercise and will be limited to claims of damages for wrongful eviction which does not seem to be the case in this instant as the landlord had leave of this tribunal to distress for rent arrears and evict.

Ordersi.The upshot is that the Landlord’s Reference dated August 16, 2019 is hereby allowed for what it’s worth.ii.Each party shall bear their own Costs.

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALJudgment dated, signed and delivered virtually by Hon A. Muma this 11th day ofOctober,2022 in the presence of Agwenyi holding brief for Ondieki for Landlord and in the absence of Tenant.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL