[2023] KEBPRT 459 (KLR)
The Tribunal found that the dispute over the correct lettable area directly affected the calculation of rent and any arrears. Given the bona fide disagreement and the tenant's willingness to vacate upon payment of two months' rent, the Tribunal allowed the application in terms of the prayers seeking joint...
Source-derived case information.
- Citation
- [2023] KEBPRT 459 (KLR)
- Parties
- Applicant: X-Press Systems and Services Limited; Respondent: Kifaru Enterprises Limited
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E167 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- application allowed in part
- Judges
- A Muma
- Legal Topics
- Commercial Leases, Rent Arrears, Joint Measurement of Premises, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
X-Press Systems and Services Limited
Applicant
Kifaru Enterprises Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the rent payable should be re-assessed based on the lettable space and whether this affects the arrears payable, if any.
- 2 Whether the landlord should be restrained from attaching, carrying or selling the tenant's goods based on the Proclamation Notice.
Ratio Decidendi
The Tribunal found that the dispute over the correct lettable area directly affected the calculation of rent and any arrears. Given the bona fide disagreement and the tenant's willingness to vacate upon payment of two months' rent, the Tribunal allowed the application in terms of the prayers seeking joint measurement and injunctive relief. The Tribunal ordered that rent for July and August be paid based on the undisputed 6060 sq feet, and that a joint measurement be conducted within 21 days to determine the actual lettable area. The Tribunal further directed that the parties could file additional documents after the measurement, and that the matter would proceed to a full hearing on the...
Court Disposition
application allowed in part
Orders
- Tenant’s Application dated February 13, 2023 is allowed in terms of prayers c and e.
- Tenant to pay rent for July and August at the 6060 sq feet undisputed before end of August 2023.
Full Case Text
Judgment text and source record
25 paragraphs
X-Press Systems and Services Limited v Kifaru Enterprises Limited (Tribunal Case E167 of 2023) [2023] KEBPRT 459 (KLR) (2 August 2023) (Ruling)
Neutral citation: [2023] KEBPRT 459 (KLR)
Republic of Kenya
In the Business Premises Rent Tribunal
Tribunal Case E167 of 2023
Andrew Muma, Ag. Chair
August 2, 2023
Between
X-Press Systems And Services Limited
Applicant
and
Kifaru Enterprises Limited
Respondent
Ruling
A. Parties And Their Representatives 1. The Applicant X-press Systems is the tenant and the rented out space on the suit premises known as Godown No 2 Spectrum Business Park, Baba Dogo Road (hereinafter the 'tenant')
2. The Firm of Waithaka & Associates Advocates represents the tenant/applicant in this matter.
3. The Respondent Kifaru Enterprises is the landlord and rented out space to the tenant on the aforementioned suit property (hereinafter the 'landlord')
4. The Firm of Kipkoech Tanui & Co Advocates represents the landlord/respondent in this matter.
B. Background Of The Dispute 5. The tenant approached this Tribunal vide an application dated February 13, 2023 in which they were seeking that the landlord be restrained from attaching, carrying or selling their goods based on the strength of the Proclamation Notice that was served on the tenant dated February 2, 2023.
6. The tenant was also seeking that the Tribunal conduct a joint measurement of the suit property to determine the lettable area since there were disagreements between the parties as to the lettable space.
C. Issues For Determination 7. I have carefully considered all pleadings and evidence before me the key issue left for determination after the Tenant requested to move out at the tail end and the landlord accepted subject to payment of two months rent is;
8. Whether the rent payable should be re-assessed based on the lettable space and whether this affects the arrears payable if any?
9. As such, I make the following orders
D. Ordersa.The upshot is that the Tenant’s Application dated February 13, 2023 is allowed in terms of prayers c and e.b.The Tenant shall pay rent for July and August at the 6060 sq feet undisputed before end of August 2023. c.The Tenant is at liberty to vacate on or before the August 30, 2023 or upon payment of the said 2 months rent whichever is earlier.d.Tenant and Landlord experts Kalzman and Geoearth to conduct a joint measurement of lettable area in 21 days in the presence of an expert from the Tribunal.e.Tenant and Landlord at liberty to file additional documents thereafter within 7 days.f.Reference shall proceed to full hearing on determination of arrears if any subject to valuation report filed.g.Hearing on September 18, 2023. h.No orders as to Costs.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 2ND DAY OF AUGUST 2023 IN THE PRESENCE OF WAITHAKA FOR THE TENANT AND TANUI FOR THE LANDLORD.HON A. MUMAAG. CHAIR/MEMBERBUSINESS PREMISES RENT TRIBUNAL