Adah Nyambok t/a Fimoda Fashion v Uganda Property Holdings Ltd [2022] KEBPRT 77 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E056 OF 2021 (MOMBASA)

ADAH NYAMBOK T/AFIMODA FASHION.........................................ENANT/APPLICANT

VERSUS

UGANDA PROPERTY HOLDINGS LTD..................................LANDLORD/RESPONDENT

RULING

1. The Tenant’s application dated 13th September 2021seeks the following orders;

a. That the Tribunal be pleased to issue an order compelling the Landlord to forthwith pull down or remove portions of structures it has erected in front of the Applicant’s business and return the same as it was before.

b. That alternatively, the Applicant be granted leave by the Tribunal to demolish and or pull down the offending portions and the costs thereof to be recovered from the Respondent.

c. That the OCS Central Police Station does ensure compliance with the orders.

2. It is the Tenant’s case that the Landlord has erected a structure which inconveniently blocks the pathway entry to the Applicant’s premises and demolished a portion belonging to the Tenant’s partition of the space rented to her.  It is not clear from the affidavit of the Applicant whether the alleged activities of the Landlord interfered with the entry to her business premises only or whether the said activities interfered with the Tenant’s actual demised premises.

3. However, at paragraph seven (7) of her affidavit, the Tenant does state that the erection of the new structure by the Landlord has taken almost three quarters the size of the path leading to the Applicant’s business making it difficult for anyone to pass through and partly blocking the pathway to her business.  This to me seems to be the major complaint by the Tenant in the application.

4. Whereas the Respondents position is that it is the Tenant who created the current access which passes through a pillar supporting the building, the Tenant’s position is that it is the Landlord who expanded the portion of the partition thus creating a narrow space for the Applicant/Tenant blocking her pathway to her business.

5. The nature of the orders sought by the Tenant if that of the same are granted, the outcome would be the determination of this suit at the interlocutory stage.  The demolition of the premises or the partition sought to have been erected by the Landlord is a drastic measure.  Such orders can only be made upon a full hearing of the parties and the tendering of evidence.  The nature of the complaint is also such that the Tribunal would have to visit the site either by itself or through its officers to ascertain the true position of the structures alleged to have been illegally constructed.

6. The Tenant only complains of a difficulty in accessing the suit premises.  She has not demonstrated that she is not operating her business due to the said difficulty and neither has she demonstrated a clear interference by the Respondent in the operation of her business within the demised premises.

7. I am not convinced that the Applicant has demonstrated that she has a prima facie case against the Respondent and further, she has not demonstrated any irreparable loss that she is likely to suffer if the orders sought are not granted.

8. The application by the Tenant dated 13th September 2021 is therefore dismissed with costs to the Landlord.  I will also order that this matter be fixed for hearing during the next session at Mombasa and the Tribunal to visit the locus in quo during the hearing of the case.

9. This matter will be mentioned on 21st February 2022 to confirm a hearing date at Mombasa.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this8thday of February, 2022in the presence of the Landlord and counsel.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL