[2022] KEBPRT 869 (KLR)

Tailor v Dhingra (Tribunal Case E40 & E046 of 2022 (Consolidated)) [2022] KEBPRT 869 (KLR) (20 December 2022) (Ruling)

Neutral citation: [2022] KEBPRT 869 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E40 & E046 of 2022 (Consolidated)

Andrew Muma, Vice Chair

December 20, 2022

Between

A.M. Tailor

Landlord

and

Ramesh Chander Dhingra

Tenant

Ruling

A. Parties And Their Representatives 1. The Landlord/Applicant, AM Tailor Ltd rented out to the Tenant, an office space on Land Parcel No Kisii Town/Block/III/276 (hereinafter referred to as the Landlord’).

2. The Firm of Mose, Mose & Milimo Advocates represents the Landlord/Applicant in this Reference (E-mail address: mmmadvocateskisii@yahoo.com)

3. The Respondent is the Tenant of the office space situated on Land Parcel No Kisii Town/Block/III/276 (hereinafter referred to as the ‘Tenant’).

4. The Firm of TO K’Opere & Co Advocates is on record for the Tenant/Respondent (E-mail address: toklaw@tokopere.com)

B. The Dispute Background 5. On or about January 1, 2016, the Landlord and Tenant entered into a Lease agreement for a Shop situated at Imperial Building-Kisii on Land Reference No Kisii Town/Block III/276 for a period of five (5) years one (1) month, ending on January 31, 2021 at a monthly rent of Kshs 25,000. 00.

6. The Landlord served the Tenant with a letter dated August 18, 2019 purporting to terminate tenancy, citing that he sought to expand his business hence required more space to effect the same.

7. On August 26, 2019, the Tenant filed a suit in the Magistrates Court, Kisii CMCC ELC No 667 of 2019, challenging the validity of the aforementioned notice and claiming that the letter did not constitute a notice under Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. The provision states:'A landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form'

8. Consequently, the Court granted an order of injunction on August 27, 2019 which was served upon the Landlord on August 30, 2019.

9. On September 4, 2019, the Landlord filed a Notice of Preliminary Objection in Kisii CMCC ELC No 667 of 2019 challenging the court’s jurisdiction to hear and determine the matter, which was upheld vide the court’s judgment delivered on January 17, 2020.

10. Consequently, the Tenant filed a memorandum of appeal dated January 20, 2020, thus instituting Kisii ELC Appeal No 4 of 2020, against the court’s judgment delivered on January 17, 2020. Resultantly, the Court granted the Tenant orders to maintain the status quo pending the hearing and determination of the appeal.

11. The Landlord filed an appeal against Kisii ELC Appeal No 4 of 2020, however the same was dismissed through a judgment dated July 27, 2022. The court held that the existence of a clause that allowed for termination of tenancy otherwise than for breach created a controlled tenancy between the parties. Hence, the trial court lacked jurisdiction to hear the matter and the Landlord’s appeal lacked merit.

12. The Landlord filed a Reference dated filed a Notice of Motion (ex-parte) application dated August 3, 2022 under Certificate of Urgency of even date. He sought inter alia, that the Tribunal ratify the termination of tenancy pursuant to the letter of termination dated August 18, 2019, and issue an order of eviction against the Tenant.

13. The Tenant filed Grounds of Opposition of Reference dated September 19, 2022, claiming that the letter of termination dated August 18, 2019 did not constitute a valid notice under Section 4(2) of the Landlord and Tenant Act.

14. On September 21, 2022, Minmax Auctioneers entered into the Tenant’s premises and attached all his goods, claiming that the Landlord had instructed them to levy distress for rent. They issued the Tenant with a Proclamation dated August 2, 2022, which the Tenant claimed had neither been served on him nor disclosed by the Landlord in his Reference and Application.

15. On September 27, 2022, the Tenant filed a Notice of Motion application under Certificate of Urgency of even date. He claimed inter alia, that he remitted the sum of Kshs 1,302,200. 00, being rent payment and auctioneer fees, against the rent of Kshs 1,102,200. 00. He attached copies of receipts to buttress the same. Nonetheless, the Auctioneers locked his shop thus denying him access to the premises.

16. Consequently, the Landlord filed a Notice of Preliminary Objection dated October 24, 2022 challenging the Tribunal’s jurisdiction to hear and determine the Tenant’s application of even date.

17. The Tenant filed a Notice of Motion application dated October 26, 2022 under Certificate of Urgency of even date, seeking inter alia, that the Tribunal examines the Landlord Company’s director and the auctioneers on contempt of the Tribunal’s orders issued on September 27, 2022. Further, he sought that they account of the KShs 1,302,200. 00 paid to the Auctioneer.

C. Jurisdiction 18. The jurisdiction of this Tribunal is in dispute.

D. Issues For Determination 19. The issue raised for determination before this Tribunal are as follows:a.Whether the Landlord’s Notice of Preliminary Objection dated October 24, 2022 ought to be allowed;b.Whether the distress for rent by the Landlady was unlawful and contrary to the provisions of Cap 301

E. Analysis And Determination Whether the Landlord’s Notice of Preliminary Objection dated October 24, 2022 is valid 20. At the outset, this Tribunal reiterates the court’s decision in Kisii ELC Appeal No 4 of 2020 at paragraphs 27-28 whereby it was held:My analysis of the submissions by the parties reveals sadly that while arguing that the 5 year one month tenancy was not controlled tenancy only dwelt on Section 2(1)(b)(i) as reproduced above and did not bother to consider Section 2(1)(b)(ii) which stipulates that if a tenancy agreement has provision for termination, otherwise than for breach of covenant, within 5 years from the commencement of the term, it is a controlled tenancy. In other words, if such a tenancy has provision for termination, which can be invoked at any time during the term, it is in my view a controlled tenancy.

21. Section 12(4) of the Landlord and Tenant states:In addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant, and may make such order thereon as it deems fit.

22. From the foregoing, I therefore find no merit in the Landlord’s Preliminary Objection and the same is dismissed as the present dispute concerns a controlled tenancy, which falls within this Tribunal’s jurisdiction.Whether the distress for rent by the Landlord was unlawful and contrary to the provisions of Cap 301

23. This Tribunal makes reference to Section 12(1)(h) of the Landlord and Tenant Act which confers on this Tribunal the power to permit the levy of distress for rent.

24. In John Nthumbi Kamwizhi v Asha Akumu Juma, Embu HCCA No 7A of 2016 , the Court held:The right serves the purpose of a remedy for the Landlord to recover rent that may be in arrears. For this right to be enforced, there must be rent in arrears.

25. In the present dispute, the Tenant remitted Kshs 1,302,200. 00, inclusive of rent payment and auctioneer fees, against the rent of Kshs 1,102,200. 00. As such, the Tenant had settled outstanding rent arrears and further adduced receipts to prove the same.

26. Despite having settled rent payment, the Landlord instructed Minmax Auctioneers on August 1, 2022 to levy distress for rent and evict the Tenant from the suit premises. On September 21, 2022, the said auctioneers proceeded to attach the goods in the Tenant’s shop. Further, they welded the Tenant’s doors, removed the locks, fixed their own padlocks and denied the Tenant access to the premises.

27. From the foregoing, I find that the actions of the Landlord and their agents, the auctioneers, were undertaken without the leave of the Tribunal contrary to Section 12(1)(h) of the Landlord and Tenant Act. Consequently, this Tribunal holds that the distress for rent by the Landlord was unlawful.

28. However, the Tribunal visited the premises to establish whether it still had jurisdiction and found that the tenant had since vacated and there was a new tenant and new lease in force thus robbing this tribunal any powers to deal with the matter anymore.

F. Orders 29. This Tribunal makes the following orders. The upshot is that:a.The Tenant/Applicant’s Reference and Notice of Motion application dated October 26, 2022 is hereby dismissed; Site visit confirms that the Tenant has since been evicted for rent arrears. This Tribunal has no jurisdiction.b.Any further claims to be ventilated in the right forum.c.Each party shall bear their own costs.

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 20TH DAY OF DECEMBER 2022 IN THE PRESENCE OF LIGALA HOLDING BRIEF FOR OPERE FOR THE TENANT AND WESONGA FOR THE LANDLORD.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL