Cyrus Ikadwa Asievukwa v Elizabeth Kimemia [2021] KEBPRT 348 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 994  OF 2019  (NAIROBI)

CYRUS IKADWA ASIEVUKWA………….......……….….…TENANT/APPLICANT

VERSUS

ELIZABETH KIMEMIA…………………....................LANDLORD/RESPONDENT

RULING

When the parties appeared before court on 4th March 2021, it was common ground that the application dated 22nd October 2019 had been overtaken by events.

Mr. Osewe for the Tenant submitted that what remained for the honourable court to determine was the issue as to which order between the one made in BPRT NO. 1000/2019 on 22/10/2019 and the one made in this case on 26/10/2019 takes precedence.

According to the Tenant’s counsel, the order in BPRT No. 1000/2019 was meant to defeat the application in BPRT  No. 994/2019.

According to Mr. Kinyua for the Landlord, his client was not aware of any other suit by the time he filed BPRT No. 1000/2019 as he had not been served.

The Landlord’s counsel proceeded to argue that there was no longer any Landlord/Tenant relationship between the Applicant and Respondent.

The order in BPRT No. 1000/2019 has not been set aside or challenged on appeal.

He referred the court to the replying affidavit filed on 18/11/2019.

He concluded by saying that prayer 8 of the application was also overtaken by events since the premises were given out to another tenant.

I have perused both files and wish to make the  following observations:-

(i) Prior to 25th October 2019, there was no order restraining the Landlord from levying distress in BPRT No. 994/2019.

(ii) On 25th October 2019, the Tribunal restrained Moran Auctioneers from selling and/or disposing the Tenant’s goods which were proclaimed on 23rd October 2019.

(iii) The Tribunal directed that the order be served upon the Auctioneers by the Tenant’s advocate.

(iv) There is no affidavit of service in the court file to confirm whether the said order was served as directed.

(v) On 22nd October 2019, the Landlord was granted a break in order and access to the suit premises to enable levying of distress for a sum of Kshs.18000/- for outstanding electricity bills.

(vi) There is no stay order or appeal preferred against the break in order or levy of distress.

From the foregoing, it is clear that the order of 22nd October 2019 took precedence as it was made first.

If the Tenant was aggrieved by the auctioneers non compliance or otherwise with the order of 25th October 2019, there is an appropriate forum through which the issue can be addressed.

In the circumstances, I find that the application dated 22/10/2019 has been overtaken wholly and there is no basis upon which this court can continue to sustain the instant proceedings.

The Reference is therefore marked as spent with no orders as to costs.

HON. GAKUHI CHEGE

VICE CHAIR

23/4/2021

Ruling delivered in presence of Kinyua for the Landlord/Respondent

No appearance for the Tenant.