Erasto Oliech Ochako v Avani Patel t/a Estate of the Late Shantabaisha, J.K. Wanderi Auctioneers & Justus Obiero Matundura [2021] KEBPRT 632 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 1047 OF 2020 (NAIROBI)

ERASTO OLIECH OCHAKO...............................................TENANT/APPLICANT

VERSUS

AVANI PATEL T/A

ESTATE OF THE LATE SHANTABAISHA......LANDLORD/1ST RESPONDENT

J.K. WANDERI AUCTIONEERS.................AUCTIONEERS/2ND RESPONDENT

JUSTUS OBIERO MATUNDURA..............................................3RD RESPONDENT

RULING

The Tenant/Applicant herein has filed a notice of motion application dated 28th December 2020. The same proceeded orally on 25th February 2021. I proceed to summarize the respective cases for the parties as follows;

The Tenant’s/Applicant’s Case:

The Tenant has made the following prayers in his said application;

1. Spent

2. That the honourable Tribunal be pleased to grant an order compelling the Defendants/Respondents to release or return the Plaintiff’s Konica Digital Printing machine C220 worth Kshs 450,000 that they had earlier confiscated as a security for the Plaintiff’s rent arrears.

3. That the honourable Tribunal be pleased to grant an order restraining the Defendants/Respondents, their servants, employees and agents J.K. Wanderi Auctioneers from attacking, selling the Plaintiff’s/Tenant’s goods and/or in any other manner dealing with his goods, evicting, harassing him and/or interfering with his tenancy pending the hearing and determination of the suit.

4. That the Tenant be allowed to pay his rent arrears of Kshs 265,000/- in instalments.

5. That the OCS Central Police Station does ensure compliance.

The application is supported by the Tenant’s application which may be summarized as follows;

i. That the Tenant is currently paying the rent of Kshs 35,000/- per month.

ii. That his business has been affected by the pandemic (covid) and he is unable to pay his rent arrears.

iii. That he admits to outstanding rent arrears amounting to Kshs 265,000/- as at December 2020.

iv. That the Landlord had instructed the auctioneers to attach the Tenant’s Konica printing machine valued at Kshs 450,000/-. The Respondents are still holding the machine.

v. That he depends on the proceeds from the suit premises for his upkeep.

The application is opposed. The 1st Respondent has sworn a replying affidavit whose facts I summarize as follows;

i. That the tenancy agreement herein expired on 1st February 2020.

ii. That as at January 2021, the Tenant owed rent in the sum of Kshs 305,000/-

iii. The Tenant has issued dishonoured cheques on more than three occasions.

iv. That the 1st Respondent instructed the 3rd Respondent to distress for rent but was not a party to any arrangements between the Applicant and the 3rd Respondents on the issuance of the Konica digital printing machine.

The parties proceeded orally before me on 25th February 2021. The Applicant in his submissions admitted to owing Kshs 300,000 in rent arrears. He only sought at most three months to settle the rent arrears and the current rent.

The counsel for the 1st Respondent submissions can be summarized as follows;

1. That the Tenant having admitted owing rent, there was no cause of action against the Landlord.

2. That the Tenant’s application is incompetent as the Tenant has not filed any reference. He is in contravention of section 6 and 12 of Cap 301.

3. That the Landlord is not responsible for he does not know the circumstances under which the 2nd and 3rd Respondents repossessed the Tenant’s printer.

4. That the Tenant has not met the threshold in the grant of interlocutory injunctive orders having admitted to the rent arrears.

5. That the Tribunal cannot re-write the tenancy agreement between the parties herein.

The Tenant in his reply requested to be allowed to pay at least Kshs 100,000/- by end of March 2021. He insisted that the 2nd and 3rd Respondents picked the printing machine from his business premises.

The Tenant/Applicant commenced these proceedings by way of a complaint under section 12(4) of Cap 301. The said section provides as follows;

4”in addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the Landlord on the Tenant and may make such orders thereon as it deems fit.”

A complaint has been defined in the case of Choitram – vs- Mysery Model Noor Saloon [1972] EA 525 Simpson J as follows:

“I am of the opinion however that the term “complaint” is intended only to cover complaints of a minor character…such complaints would include complaints by a Tenant of the turning off of water, obstruction of access and other acts of harassment by the Landlord calling for appropriate orders for their rectification or cessation.”

From the above, I have doubts that the complaint raised by the Tenant qualifies to be a complaint. The issues raised herein cannot be equated with the definition above. They are serious issues. I am hesitant to agree with counsel for the 1st Respondent in her submission that the application is incompetent as the Tenant did not file a reference. This is so because section 12(4) of Cap 301 is one of the avenues through which the Tenant or the Landlord in a controlled tenancy may approach the Tribunal. Though judicial decisions may have defined what amounts to a complaint, section 12(4) of Cap 301 is silent on what constitutes a complaint to be brought under the said provision of the Act.

The Tenant/Applicant has admitted to being in arrears of rent. The tenancy agreement which governed the relationship between the parties herein is clear on the duties/allegations/responsibilities of each of the parties. The Tenant now requests the Tribunal to step out of the said agreement and impose its terms in allowing him to pay the admitted arrears in instalments. The Tenant’s promises to make payments from around October 2020 have been empty promises.

On the issue of the Konica digital printing machine that the Tenant seeks to have returned to him, I note at this juncture that the same has not or does not appear in the proclamation dated 17th December 2020 neither does it form part of the complaint dated 28th December 2020.

The powers of the Tribunal are enumerated under section 12(1) of Cap 301. In the absence of a consent by the parties, the Tribunal has no authority to vary the terms of a tenancy agreement between the parties. I therefore find that I have no powers under the said section to impose new terms in the tenancy agreement between the parties herein.

The mode of the payment of the agreed rent is well spelt out in the agreement between the parties, it is not one for payment in arrears and in instalments.

In the circumstances, I do find that the Tenant’s application dated 28th December 2020 has no merits and the same is dismissed with costs to the 1st Respondent.

It is so ordered.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

RULING DELIVERED VIRTUALLY BY HON. CYPRIAN MUGAMBI NGUTHARI THIS 9TH DAY OF APRIL, 2021 IN THE PRESENCE OF MR ORENDE FOR THE 1ST RESPONDENT AND IN THE ABSENCE OF THE APPLICANT/TENANT.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL