Arki Company Limited v All Africa Conference of Churches [2025] KEBPRT 34 (KLR)

Arki Company Limited v All Africa Conference of Churches (Tribunal Case E698 of 2024) [2025] KEBPRT 34 (KLR) (24 January 2025) (Ruling)

Neutral citation: [2025] KEBPRT 34 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E698 of 2024

CN Mugambi, Chair

January 24, 2025

Between

Arki Company Limited

Plaintiff

and

All Africa Conference of Churches

Landlord

Ruling

1. The Landlord’s Application dated 24. 12. 2024 seeks orders that the firm of Chesikaw & Kiprop Advocates be granted leave to come on record for the Landlord/Applicant, and an order that prayer 3 of the orders issued on 23. 12. 2024 be reviewed and the Tenant be ordered to vacate the suit premises on or before the 31. 12. 2024 failing which the Landlord will be at liberty to evict the Tenant using a licensed auctioneer and the OCS Kilimani Police Station to ensure compliance.

2. The affidavit in support of the Application has been sworn by M/S Faith Mutie who has deponed that on 23. 12. 2024, the court directed the Tenant to vacate the premises on or before 31. 1.2025.

3. The Landlord has further deponed that the date of 31. 1.2025 is too far as the Tenant’s lease expired on 30. 11. 2024 and hence there is no justification for continued stay by the Tenant at the Landlord’s premises and the Landlord has been therefore denied the exclusive use, occupation and possession of the suit premises.

4. That the orders currently in force have curtailed the Landlord’s capacity to enter into other tenancy agreements with other Tenants.

5. The Landlord has further deponed that it has executed a joint venture agreement with an investor who intends to take possession of the premises on or before 1st January 2025 and any delay will lead to the cancellation of the said agreement.

6. On 7. 1.2025 when this Application came up for hearing, the firm of Chesikaw & Kiprop Advocates was granted leave to come on record for the Landlord, hence, the first limb of this Application was taken care of and the said firm of Advocates is properly on record for the Landlord.

7. The substantive part of the Application is the prayer that the court reviews order 3 in the Ruling issued on 23. 12. 2024. The said order as issued by the Tribunal reads as follows;-“That the Tenant will render vacant possession of the premises on or before 31. 1.2025. ”The Applicant in this case has applied that the Tribunal reviews that order and in its place make an order that the Tenant be ordered to vacate the suit premises on or before 31. 12. 2024. The grounds for review are clearly set out under order 45 Rule 1 of the Civil Procedure Rules and they include;i.The discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the Applicant or could not be produced by the Applicant when the order was made.ii.Mistake or error apparent on the face of the record.iii.Or for any sufficient reason.

8. I do not think the reasons advanced by the Applicant in his affidavit satisfy the requirements as set out in order 45 Rule 1 of the Civil Procedure Rules. The investor who the Landlord alleges to have found and with whom the Landlord has entered into a joint venture has not been disclosed. The Landlord has further not annexed the agreement it has with the alleged investor and I am therefore not able to confirm that the investor was actually to take possession of the suit premises by 1. 1.2025.

9. I have not seen any compelling reason to vacate the orders that the Tenant is to vacate the suit premises by 31. 1.2025. That grace period was issued by the Tribunal to allow the Tenant make arrangements to move out of the suit premises and was well within the discretion of the Tribunal under the provisions of Section 9(1)(a) of Cap 301 which provides that a Tribunal may upon hearing a Reference,“approve the terms of the tenancy notice concerned, either in its entirety or subject to such amendment or alteration as the Tribunal thinks just having regard to all the circumstances of the case.”Section 9(1)(c) further allows the Tribunal to make such further or other orders as it thinks appropriate upon hearing a Reference. Consequently, the prayer that the Tenant be ordered to vacate the suit premises on or before 31. 12. 2024 is dismissed.

10. The Landlord has further sought an order upon review, that the orders of the Tribunal be enforced by a licensed auctioneer and the OCS Kilimani police station to ensure compliance. The Tribunal has already directed that the Tenant renders vacant possession of the suit premises on or before 31. 1.2025. It is expected that the Tenant will utilize the period from 23. 12. 2024 to 31. 1.2025 to organize its affairs and peacefully and voluntarily vacate the premises. If the Tenant fails or refuses to vacate the suit premises voluntarily, I do not see any harm in allowing the OCS Kilimani Police Station to ensure that the court orders are effected through a licensed Auctioneer.Consequently, I will allow the Tenant’s prayer that the Tenant shall vacate the suit premises on or before 31. 1.2025 failing which the Landlord shall be at liberty to evict the Tenant using a licensed auctioneer and the OCS Kilimani Police Station shall ensure compliance.

11. There shall be no order as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 24THDAY OF JANUARY, 2025. HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Ms. Mwangi holding brief for Mr. Kiprop for the Applicant and Mr. Kariuki for the Tenant