Anyango t/a Celly Star Academy v Oketch t/a Gospel Miracle & Healing Power Church & another [2022] KEBPRT 860 (KLR)

Anyango t/a Celly Star Academy v Oketch t/a Gospel Miracle & Healing Power Church & another (Tribunal Case E011 of 2021) [2022] KEBPRT 860 (KLR) (Civ) (9 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 860 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E011 of 2021

Andrew Muma, Vice Chair

November 9, 2022

Between

Seline Anyango t/a Celly Star Academy

Tenant

and

Mary Oketch t/a Gospel Miracle & Healing Power Church

1st Respondent

Charles Ogana (Caretaker)

2nd Respondent

Ruling

A. PARTIES AND REPRESENTATIVES 1. The tenant/applicant, Seline Anyango is the proprietor of Celly Star Academy which allegedly rented space for the business (hereinafter known as the ‘tenant’);

2. The firm of M/S EA Ochieng & Company Advocates represents the Tenant in this matter. Email: elizabethakinyiochieng@yahoo.com.

3. The 1st respondent/Landlord is the landlord and owner of the suit premises occupied by Gospel Miracle & Healing Power Church and allegedly rented out to the tenants (hereinafter the Landlord);

4. The 2nd respondent is employed as a caretaker for the premises occupied by Gospel Miracle & Healing Power Church;

5. The firm of M/S Gichaba & Company Advocates represent the 1st and 2nd respondents in this matter. Email: info@gichabaadvocates.co.ke

B. THE DISPUTE BACKGROUND 6. On August 26, 2021 the tenant moved this tribunal by way of reference and a notice of motion application under certificate of urgency dated August 27, 2021 under Section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Tenant sought, inter alia, that pending the hearing and determination of the application, the tribunal be pleased to grant a temporary injunction restraining the landlord by themselves, their agents and/or servants from interfering with the peaceful learning and occupation of Celly Star Academy on the grounds that the Applicant, together with the pupils learning in the school operated by the Tenant would suffer irreparable and irredeemable loss if they are unable to access the school and miss out on the new curriculum being rolled out by the government.

7. On September 1, 2021, the Tribunal granted the interim order sought by the tenant, restraining the Respondents, either by themselves, their agents and/or servants from interfering with the peaceful learning and occupation of Celly Star Academy pending the hearing and determination of the application. The tribunal further fixed the matter for interpartes hearing on September 27, 2021;

8. The matter came up for hearing on September 27, 2021, whereby it was ordered that a rent inspector visit the suit premises in order to determine the business being carried out and the status of the Tenant on the ground. Following these orders, inspection was carried out on October 19, 2021 and the Rent Inspection Report dated October 21, 2021 was placed in the file;

9. On October 21, 2021, the respondents subsequently filed a preliminary objection on grounds that the tribunal lacks jurisdiction to determine the notice of motion Application as there subsisted no tenancy agreement, in writing or by implication, between them and the Plaintiff. The tribunal ordered both parties to file submissions on the preliminary objection, the Inspection Report and the parent application.

10. On February,16 the court pronounced itself on the matter and awarded costs to the landlord. The landlord filed a bill of costs which has since been opposed by the tenant.

C. JURISDICTION 11. The Jurisdiction of this Tribunal is disputed.ITEM DATE PARTICULARS AMOUNT CHARGED(APPLICANTS) AMOUNT TAXED OFF (RESPONDENT) AMOUNT TAXED OFF (TRIBUNAL)

19/08/2021 Instructions Fees of a Claim of Kshs. 7,000/= N/A

19/08/2021 Tribunal attendances for filing of Memorandum of Appearance DefenceNotice of P.OSummons and Bill of Costs. 7,000/= 1,100/=1,100/=180/=

30/08/2021 Court attendances on27/9/2021,15/10/2021. 22/10/2021,26/10/202123/11/202126/11/202116/2/2022 4,000/= 4,000/=2,100/=2,1002,100=2. 100=2,100=2,100

09/09/2021 Service of Memorandum of Appearance, 1st and 2nd Defendants Replying Affidavits, P.O, Submissions & Bill of Costs. 7,000/= 1,400/=

Visiting the scene o 19. 10. 2021 6,000/= 6,000/=

SUBTOTAL 148,610/= 20,380/=

Add 16% VAT 23,778 3260. 8/=

TOTAL AMOUNT 172,388 23,640/=

COURT FEES

20/08/2021 Tribunal fees on Memorandum of Appearance, Defence, Notice of P.O, Summons and Bill of Costs 610/= 50/=250/=

Sub Total 610/= 300/-

GRAND TOTAL 172,388

BILL OF COSTS TAXED AT 172,388 23,940/=

Particulars 12. Item 1- Instruction Fees:As per the ruling held on February 16, 2022, the Tribunal established that there has never been a tenancy relationship between the parties as a result we cannot establish the value of the subject matter being the amount of rent paid by the alleged tenant.

13. Item 2- drawing & filing of defence, PO & bill of costsAmount taxed is excessive and not in accordance to Paragraph 4 (a)(i) of Schedule 6 and Paragraph 4(e) of schedule 6 of the Advocates Remuneration Order, 2014.

14. Item 3- Attending Tribunal For hearing:Amount taxed is excessive and not in accordance with Paragraph 8 (e)(i) & (ii) of Schedule 8 of the Advocates Remuneration Order, 2014.

15. Item 4- service of memorandum of appearance, replying affidavits, P.O & bill of costs:Amount taxed is excessive and not in accordance to Paragraph 8(e)(i) of the Advocates Remuneration Order, 2014.

16. Item 6-Site Visit;The Court finds it reasonable to reimburse the Landlord for the Costs incurred for the inspection visit.

17. Item 6-Court Fees;The applicant has provided the court receipts for the same and as such the Tribunal shall tax the amounts as provided.Based on these provisions of the Law, and having considered the Landlord’s submission, it is the conclusion of this Tribunal that the Bill of Costs have been drawn within the reasonable confines of the Law.Based on the foregoing, the Landlords’ Bill of Costs dated September 29, 2021 is taxed at Kshs 29,940/=

ORDERSFor the reasons given above i order as follows that:1. The tribunal taxes the Landlord’s bill dated September 29, 2021 at Kshs 29,940/-2. The tenant shall pay the costs within 30 days from the date of being served with a certified copy of the order.

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALJUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 9TH DAY OF NOVEMBER 2022 IN THE ABSENCE OF ALL PARTIES.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL