D V Shah & Co Limited v Mombasa Uniforms Limited [2021] KEBPRT 155 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 137 OF 2021  (MOMBASA)

D.V. SHAH & CO. LIMITED.............................APPLICANT/LANDLORD

VERSUS

MOMBASA UNIFORMS LIMITED...................RESPONDENT/TENANT

RULING

1. The Landlord by its application dated 11th June 2021 is seeking for permission to levy distress for rent against the Tenant for outstanding rent in the sum of Kshs.2,202,000/- as at the date of the application.

2. The application is supported by the affidavit of Sudip Shah sworn on 11th June 2021 and the grounds on the face of the application.

3. The monthly rent payable for the demised premises is Kshs.110,200/- inclusive of VAT which is outstanding since October, 2019 accumulating to Kshs.2,204,00/- as per annexture ’SS-1’.

4. All efforts by the Landlord to have the Tenant settle the rent arrears have been futile leaving no other option than to distress.  The Landlord has annexed a demand letter dated 13th May 2021 marked “SS-2”.

5. The application is therefore brought under the provisions of section 12 (1)(h) of Cap. 301, Laws of Kenya on the basis that the tenancy is controlled.

6. The Respondent/Tenant filed a replying affidavit on 15/7/2021 sworn by one Monica Mutua as one of the administrators of the estate of Fredrick Mutua Mulinge (Deceased).

7. It is deposed that the said deceased who was the majority shareholder passed away on 26th April 2020 and the business experienced great difficulties as he was in charge of running the company operations.  Secondly, it is deposed that the business was affected by Covid -19 pandemic owing to closure of schools in March 2020.  This led to reduction of income as the business largely trades in school uniforms.

8. It is further deposed that administration of the said shareholder’s estate is ongoing and the same shall inject some capital into the business.

9. Distress for rent according to the Respondent will result into total closure of the business operation as only tools of trade are available for distress.

10. According to the tenant, it will be premature at this stage to grant orders for distress in favour of the landlord as it will lead to eviction of the tenant unlawfully.

11. The issues for determination going by the pleadings are:-

(a) Whether the landlord is entitled to the orders sought.

(b) Who is liable to pay costs?

12. The application was ordered to be disposed of by way of written submissions and both parties complied.

13. According to the landlord, the tenant is under a legal duty to pay rent as it falls due for occupation of the premises as defined under Section 2(1) of Cap. 301, Laws of Kenya.  The duty to pay rent being at the heart of every tenancy, the failure to do so is an affront to the rights of the landlord and entitles it to levy distress under section 3 of the Distress for Rent Act.

14. On the other hand, the Respondent reiterates the contents of the replying affidavit and avers that the goods sought to be distrained are its tools of trade which are exempted from distress under section 16(1)(c) and (g) of the Distress for Rent Act.

15. I have noted from the replying affidavit and the Respondent’s submissions that there is no denial that the rent claimed by the landlord is owing.

16. The Tenant has not made any proposal on how it intends to make good the arrears, it continues to occupy the premises rent free.

17. Although there is an allegation that the deceased majority shareholder’s estate is in the process of administration, no documentary or other evidence has been provided neither is it clear when the same shall be completed.

18. It is a cardinal duty of every tenant to pay rent and  the Respondent is not entitled to continue occupying the premises rent free.

19. No distress has so far taken to warrant the tenant to complain that what is sought to be attached/distrained are tools of trade exempted from distress.  It is premature and defeatist to argue so.

20. In the premises, I am convinced that the landlord is entitled to the following orders which I hereby grant:-

(a) That permission is hereby granted to the landlord to levy distress for rent against the tenant for the amount outstanding to date.

(b) That the landlord shall be entitled to costs of this application further court fees and auctioneers for the said distress against the tenant.

(c) The OCS, Mombasa Central Police Station shall provide security during the distress for rent.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 5TH DAY OF NOVEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling delivered in absence of the parties.