Back 2 Back Media Tec Institute Limited v Bharat Anantukar Patel & Rajesh Anantkumar Patel [2021] KEBPRT 638 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 529 OF 2019 (NAIROBI)

BACK 2 BACK MEDIA TEC

INSTITUTE LIMITED.............................................TENANT/APPLICANT

VERSUS

BHARAT ANANTUKAR PATEL................LANDLORD/1ST RESPONDENT

RAJESH ANANTKUMAR PATEL............LANDLORD/2ND RESPONDENT

RULING

The Landlord’s application by way of notice of motion dated 8th February 2021 seeks the following orders;

1.   That the Tenant/Applicant herein be ordered to pay the outstanding rent arrears as at 1st January 2021 of Kshs 7,216,600/- to the Landlord/Respondent herein failing which the same be recovered by way of distress or execution.

2.   That the above suit (this suit) be heard on a priority basis.

The Landlord/Applicant in the application has listed six grounds on the face of the application.  These are;

1.   That this case is part heard before this court.

2.   That the Tenant/Applicant herein was distressed for some arrears of rent of Kshs 1,777,000/- as at February 2019.

3.   That after the said distress was levied, the Landlord/Respondent did not recover the outstanding arrears of rent.

4.   That the Tenant/Applicant subsequently filed this case in court and stopped any further payment of rent which had accumulated to Kshs 7,216,600/- as at January 2021.

5.   That failure by the Applicant to honour its obligation to pay the rent has occasioned the Landlord/Respondent extreme financial constraint as it is unable to finance its loans and meet other financial obligations.

6.   That the Tenant/Applicant should be ordered to pay the Landlord/Respondent the said outstanding rent forthwith failure to which a distress or execution should be issued.

The supporting affidavit of the Landlord can be summarized as follows;

1.   That the rent payable by the Tenant was initially Kshs 220000 + VAT with an annual increament of (10%) ten per cent.

2.   That as at 10th December 2018, the Tenant had outstanding rent arrears of Kshs 1,266,000/-.  The Tenant’s goods were proclaimed due to this outstanding rent on 11th December 2018.

3.   That as at 16th February 2019, the outstanding rent was Kshs 1,777,000/-.

4.   That the rent outstanding to date is Kshs 7,216,600/-.

5.   That after several mis-steps, the Tenant’s goods were eventually proclaimed on 30th May 2019 and sold on 7th June 2019.

The Tenant/Applicant, Respondent in the present application was served and an affidavit of service was filed on 22nd January 2021.  The same is sworn by one Mr Musyoka Mbava Nguno, a duly licensed process server as per paragraph 1 of the said affidavit.

I have looked at the said affidavit and I am satisfied that counsel on record for the Tenant, M/S Wangira Okoba & Co Advocates were properly served.  The said firm of advocates for the Tenant have not filed any responses on behalf of their client in opposition to the Landlord’s application under consideration.  As it stands, the Landlord’s application dated 8th February 2021 is unopposed.

The power/jurisdiction to permit the levy of distress for rent is donated to the Tribunal under section 12(1) (h) of Cap 301.

Under section 12(4), the Tribunal may investigate any complaint relating to a controlled tenancy and may make such orders thereon as it deems fit.  That is the provision under which the Applicant’s/Landlord’s application is expressed to be brought under.

The right of distress is provided for under section 3 of Cap 293 which provides;

3(1) “subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrears and due upon a grant, lease, demise or contract shall have the same remedy by distress for the recovery of that rent or seat service as is given by the Common Law of England on a similar case.”

In order to grant the orders sought by the Landlord the Landlord needs to satisfy this Tribunal that there exists arrears of rent upon the lease between the Landlord and the Tenant.

I have seen the Landlord’s exhibit BAP 3 which is a rent statement of the Tenant herein dated 6th February 2019.  It shows the amount of rent due as 1,777,000/-.I have also seen the Landlord’s exhibit BAP 4, a further Tenant’s statement which shows the outstanding rent as at 18th January 2021 is in the sum of Kshs 2,542,600/-.  I do find that from the statements provided, the rent outstanding as at 18th January 2021 is on the sum of Kshs 2,542,600/- a fact not controverted by the Tenant in any way.

I will therefore allow the application dated 8th February 2021 in the following terms;

1.   That the Tenant/Applicant is hereby ordered to pay rent arrears in the sum of Kshs 2,542,600/- to the Landlord within the next thirty days.

2.   That failure to pay by the Tenant as above directed, the Landlord has leave to levy distress for the said amount.

3.   That this matter be fixed for hearing on a priority basis.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

Dated and delivered in open court this 10th day of March 2021 by Hon P. May in the presence ofthe Landlord.  The firm of Obae is on record for the Tenant.  No appearance.

Kalolia: Court Assistant

HON P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL