Beatrice Monyani Elam v Rukia Tristar Properties Ltd & Sure Auctioneers Ltd [2022] KEBPRT 63 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E052 OF 2021 (MOMBASA)

BEATRICE MONYANI ELAM..............................TENANT/APPLICANT

VERSUS

RUKIA TRISTAR PROPERTIES LTD

SURE AUCTIONEERS LTD....................DEFENDANT/RESPONDENT

RULING

1.  The Tenant’s/Applicant’s notice of motion dated 9th September 2021 seeks the following orders;

a.   Spent.

b.   That pending the hearing and determination of this application inter partes, the Tribunal be pleased to restrain the Respondents by themselves or their agents from in any manner interfering with the Tenant’s quiet and peaceful occupation of the premises on plot No. Mishomoroni within Mombasa Town.

c.   That the Tribunal be pleased to issue orders to OCS Mjambere Police Station to oversee smooth operations until the application is determined.

2.  The application is supported by the affidavit of Beatrice Monyani Elam and brought on the grounds set out on the face of the said application.  The grounds and the supporting affidavit may be summarized as follows;

a.   That the Applicant has been a Tenant in the suit premises paying a monthly rent of Kshs 60,000/- (sixty thousand only).

b.   That the Respondents have served the Applicant with a proclamation notice on baseless reasons.

c.   That since March 2020, the Applicant has been struggling with rent payment due to the closure of learning institutions as a result of covid 19 pandemic.

d.   That after learning institutions started operations, the Applicant verbally agreed with the 1st and 2nd Respondent that the arrears of rent would be paid in instalments on top of the current monthly rent.

e.   That on fulfilment of the agreement aforesaid, the Tenant has paid the sum of Kshs 580,000/- from January 2021 to August 2021.

f.    That the Applicant never failed to pay rent before the pandemic and the rent arrears are as a result of the covid 19 pandemic.

g.   That the conduct of the Respondents is unfair, arbitrary and unreasonable as the suit premises is a learning institution.

h.   That the Tenant requests the Tribunal to assess the rent payable in respect of the suit premises.

3.  The application is opposed.  The Respondents have sworn a replying affidavit though Leila Awale which I summarize as follows;

a.   That as at September 2021, the Tenant was in rent arrears of Kshs 633,000/- and auctioneers charges of Kshs 73,000/-.

b.   That the distress for rent is lawful, proper and regular.

c.   That the Applicant has not issued the requisite notice for the assessment of rent payable in respect of the suit premises.

d.   That the application is bad in law and devoid of merits.

4.  The only issue that arises for determination is whether the Tenant/Applicant is entitled to the prayers sought in her application dated 9th September 2021.

5.  The Respondents have stated that as at September 2021, the Tenant was in rent arrears of Kshs 633,000/- and auctioneers charges amounting to Kshs 73,000/-.  The Tenant/Applicant has not challenged this statement by the Respondents. Whereas the Tenant admits to being in rent arrears, she does not disclose the total amount owing in arrears as at the time she filed this suit.  The Tenant also alludes to a verbal agreement between herself and the 1st and 2nd Respondents as to how the rent arrears would be cleared.  The affidavit of the Tenant/Applicant does not state how much money was to be paid per instalment to cover the rent arrears.  It does also not show for what months the payments were made.  The agreement purported to have been verbally entered into is so devoid of details that even if the same were to be assumed to actually exist, not much reliance may be placed upon it.

6. The proclamation of distrain of movable property is dated 2nd September 2021.  It shows the amount due as Kshs 630,000/- and auctioneers charges of Kshs 73,000/-.

7.  The Tenant’s affidavit in support of her application was sworn on 9th September 2021.  It admits to rent arrears.  A reading of the said affidavit and the proclamation notice clearly shows that the Tenant was in rent arrears as at the time the said proclamation was done.

8.  The right to distress for rent arises where rent or rent services are in arrears and is provided for under section 3 of the Distress for Rent Act Cap 293 of the Laws of Kenya.  The Tenant having admitted to the rent arrears, it is my finding that the Respondent’s right to levy distress was legally exercised.

9.  The Tenant being in rent arrears, cannot be entitled to equitable orders of injunction from the Tribunal.  I also note that the Applicant had sought grant of the orders in her application pending the hearing and determination of the application inter partes. No orders have been sought pending the hearing and determination of the complaint and none can therefore issue, seeing as it is, that parties are bound by their pleadings.

10. In conclusion and based on the foregoing reasons, I do find that the application dated 9th September 2021 has no merits and the same is dismissed with costs to the Respondents.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari (Chairman) this18thday of January, 2022in the presence of Ms Ondieki for the Landlord and Miss Monyani for the Tenant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL