Embakasi Ventures Limited & Zasha Auctioneers v Libken Limited [2021] KEBPRT 112 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. E376 OF 2021 (NAIROBI)

EMBAKASI VENTURES LIMITED..........................LANDLORD/APPLICANT

ZASHA AUCTIONEERS...................................AUCTIONEER/2nd APPLICANT

VERSUS

LIBKEN LIMITED.........................................................TENANT/RESPONDENT

TAXATION RULING

A. PARTIES AND THEIR REPRESENTATIVE

1. The Landlord/Applicant Embakasi Ventures Limited is the owner of Go-down Number 3 situated on Land Reference No. 9042/138.

2. The Firm of Bansbury Associates Advocates LLP represents the Applicants in this matter. todera@bansburylaw.com

3. The Respondent Libken Limited leased the suit premises, Go-Down Number 3 situated on Land Reference No. 9042/138 for the business.

4. The Firm of Angaya & Co. Advocates represents the Tenants in this matter. angaya@anaadvocates.com

B. THE DISPUTE BACKGROUND

5. On 3rd August 2021, the Tenant filed a reference and a notice of motion Application under certificate of urgency before this Tribunal alleging that the Landlord had locked down the premises without notice and had attached their tools of trade as well as sold some of their machinery.

6. In response, the Landlord filed a notice of preliminary objection on 19th August 2021 citing that the Tribunal’s lacked jurisdiction to entertain the claim as well as the application since the agreement between the parties did not give rise to a controlled tenancy.

7. On 29th September 2021the Tribunal gave orders that the preliminary objection dated 19th August 2021 was upheld and the matter was dismissed with costs.

8. The Landlord filed a party and party bill of costs dated 29th September 2021 which bill is drawn to the sum of KShs, 205,264. 64

9. The only business remaining for this Tribunal to determine in relation to this matter is the quantum of costs to be awarded to the Landlord. Having taken note of the guiding principles of taxation, the Tribunal now proceeds to determine the computation of each item as follows;

ITEM DATE PARTICULARS AMOUNT CHARGED

(APPLICANTS) AMOUNT TAXED OFF (RESPONDENT) AMOUNT TAXED OFF (TRIBUNAL)

1. 19/08/2021 Taking instructions to defend a claim in the Business Premises and Rent Tribunal on behalf of the 1st and 2nd Respondents which suit had been filed by the Tenant after the Landlord sought to levy distress for rent arrears as at August 2021 of Kshs. 3,185,600 owed to Embakasi Ventures Limited under Schedule 8 ARO using lower scale where rent owed by the Tenant (81,212. 00 x 2 respondents)

162,424. 00

81,212/=

2. 19/08/2021 a) drawing Preliminary Objection

b) Making two copies thereof

c) Service of the Notice of Appointment and the Preliminary Objection 1,100/=

20/=

1,400/=

1,100

20/=

1400/=

3. 30/08/2021 Attending Tribunal for Hearing 4,000/=

4,000/=

4. 09/09/2021 a) Drawing a Replying Affidavit

b) Making two copies thereof (8 folios)

c) Making two copies of exhibits (68 folios)

d) Service of the Affidavit 1,400/=

80/=

680/=

1,400/=

1,400/=

80/=

680/=

1,400

5. 29/08/2021 Attending Tribunal for hearing of PO 4,000/=

2100/=

SUBTOTAL

176,504/=

93,392/=

Add 16% VAT

28,240. 64

14,942. 72/=

TOTAL AMOUNT

204,744

108,334/=

COURT FEES

6. 20/08/2021 Filing Fees for Notice of Appointment and the Preliminary Objection 300/=

7. 27/03/2019 Filing Fees for Replying Affidavit 220/=

Sub Total 520/=

520/-

GRAND TOTAL 205,264. 64/=

BILL OF COSTS TAXED AT 205,264. 64/=

108,854/=

Particulars

1) Item 1- Instruction Fees:

As per the provisions of Paragraph 7(2)(a) of Schedule 8of the Advocates Remuneration Order, the instruction fees sought is not excessive and is within the reasonable bounds of the law. However, the amount has been charged separately for the two respondents which the Tribunal does not agree with.

Amount taxed at KShs. 81,212/=

2) Item 2- Drawing Preliminary Objection

-Making Copies thereof

-Service of the Notice of Appointment and P.O

Amount taxed is okay and in accordance toParagraph 4 (a)(i) of Schedule 6, Paragraph 5(d) of schedule 6 and Paragraph 8(a)(i) of Schedule 8of the Advocates Remuneration Order, 2014.

3) Item 3- Attending Tribunal For hearing:

Amount taxed is okay and in tandem withParagraph 8 (c)(i) of Schedule 8of the Advocates Remuneration Order, 2014

4) Item 4- Drawing a replying affidavit:

-Making Two Copies

-Making Copies of exhibits

-service of the Affidavit

Amount taxed is okay and in accordance toParagraph 8 (g) of Schedule 8, Paragraph 5(d) of schedule 6 and Paragraph 8(e)(i)of the Advocates Remuneration Order, 2014

5) Item 5- Attending Tribunal for hearing of PO:

Amount taxed is excessive and not in accordance toParagraph 8 (c)(ii) of Schedule 8of the Advocates Remuneration Order, 2014

Amount taxed 2100/=

6) Item 6&7- Court Fees;

The applicant has not provided the court receipts for the same and as such the Tribunal shall not tax the amounts provided.

10. Based on these provisions of the Law, and having considered the Landlord’s submission, it is the conclusion of this Tribunal that the bill of costs have been drawn within the reasonable confines of the law.

11. Based on the foregoing, the Tenants’ bill of costs dated 29th September 2021 is taxed at KShs. 108,854/=

ORDERS

For the reasons given above I ORDER as follows:

1. The Tribunal taxes the Tenant’s bill dated 29th September 2021 at KShs. 108,854/-

2. The tenant shall pay the costs within 30 days from the date of being served with a certified copy of the order.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 2ndday ofDecember 2021 in the presence of Oderafor theRespondentsand intheabsence of theTenants.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL