Flavours Toast Ltd v Hydromatics Limited [2022] KEBPRT 808 (KLR)

Flavours Toast Ltd v Hydromatics Limited (Tribunal Case E429 of 2021) [2022] KEBPRT 808 (KLR) (Civ) (13 October 2022) (Ruling)

Neutral citation: [2022] KEBPRT 808 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E429 of 2021

Andrew Muma, Vice Chair

October 13, 2022

Between

Flavours Toast Ltd

Tenant

and

Hydromatics Limited

Landlord

Ruling

A. Parties and their Representative 1. The tenant/applicant, Flavours Toast Ltd is the tenant and lessee of Go-down Number 3 situate on Land Title No Eldoret Municipality/ block 8/471 in Uasin Gishu County.

2. The firm of CD Nyamweya & Co Advocates represents the landlord in this reference. cdnyamweyaadvocates@gmail.com

3. The landlord/respondent, Hydromatics Limited, is the proprietor and landlord of all that property known as Go-down Number 3 situate on Land Title No Eldoret Municipality/ block 8/471 in Uasin Gishu County.

4. The firm of HKM Associates Advocates represent the respondent in this reference. operations@hkmlegal.co.ke law@hkmlegal.co.ke

B. The Dispute Background 5. The genesis of the matter is that on August 18, 2021, the tenant filed a reference and a notice of motion application before this tribunal alleging that the landlord wants to evict them from the premises without proper notice and to restrain the landlord from locking up the premises as there are no rental arrears.

6. On August 19, 2021, the tribunal went on to issue a temporary injunction restraining the landlord and its agents from locking up the premises pending the hearing and determination of the application therein.

7. The landlord responded via a replying affidavit dated September 13, 2021, the landlord stated that the tenant was almost always late in paying rent, issued out post-dated cheques that were often rejected by the bank due to no money in the account and rental arrears in the sum of Kshs 1,667,016 being in existence.

8. On the mention date on October 25, 2021, the parties alleged that the tenant had left the premises and on November 9, 2021, it was confirmed that the tenant had left. As such, the tribunal ruled that it had no jurisdiction as the landlord-tenant relationship had ceased to exist hence the suit was dismissed with costs for want of jurisdiction.

9. The landlord filed a party-to-party bill of costs dated April 26, 2022 which bill is drawn to the sum of Kshs, 71,180. 00. The tenant then filed a response disputing instructions fees and fees for court attendances. The landlord has filed submissions in response to the party-to-party bill of costs dated August 4, 2022.

10. 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. The tribunal places reliance on the case of Jared Ltd v Kigano & Associates Civil Appeal No 66/1999 (2002) 1 EA 92 the Court of Appeal set out the following principles that a taxing officer ought to consider:a.The nature and importance of the cause or matter;b.The amount or value of the subject matterc.The interest of the parties;d.The general conduct of the parties;e.The complexity of the issues raised and novel points of law;f.The time, research and skill expended in the brief;g.The volume of documents involved.

11. This tribunal is also guided by Aki Social Kenya Limited v Nairobi Business Park [2021] eKLR where the tribunal concluded as follows;“In determining instruction fees, the tribunal should consider the nature and importance of the subject matter, the responsibility placed on the counsel and the general conduct of proceedings, time spent, research done and skills deployed by counsel. Instruction fees must be related to the value of the work done by an advocate. I have carefully considered the factual and legal issues with a view to gauge the complexity of issues, importance of the matter and the amount of work involved.”

12. 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(landlord) AMOUNT TAXED OFF (tenant) AMOUNT TAXED OFF (TRIBUNAL)

1 September 13, 2021 Instruction fee to taking instructions, drawing and perusing pleadings, engrossing and filing the same in response to an application before the Business Premises and Rent Tribunal pursuant to the schedule 8 Item 1 of the Advocates Remuneration (Amendment) Order 2014 63,340. 00 30,000. 00 50,672. 00

COURT ATTENDANCES

2 September 15, 2021 Attending tribunal for hearing of application dated September 13, 2021 4,000. 00 2,100. 00 4,000. 00

3 October 25, 2021 Attending the tribunal for mention of when it was confirmed that the applicant/tenant evacuated the premises 1,400. 00

1,400. 00

4 November 9, 2021 Attending the tribunal for mention where the matter was dismissed for want of jurisdiction with costs 1,400. 00

1,400. 00

Sub-Total

57,472. 00

Add 16% VAT on the total

9,196. 00

Court fees/ disbursements

September 15, 2021 Filing notice of appointment 50. 00

50. 00

5 September 15, 2021 Filing replying affidavit 100. 00

100. 00

6 September 15, 2021 Filing 13 Annexures 390. 00

390. 00

7 September 15, 2021 Filing bill of costs 500. 00

500. 00

8

Grand total 71,180. 00

58,512. 00

9

Bill of costs taxed at 71,180. 00

67,708. 00

Particulars 1. Item 1- Instruction Fees: As per the provisions of paragraph 7(2)(a) of schedule 8 of the Advocates Remuneration Order, the instruction fees sought is not excessive and is within the reasonable bounds of the law. However, the same has been charged at the higher scale which the tribunal does not agree with. Amount taxed at Kshs 50,672. 00.

2. Item 2- Attendance for hearing: Amount taxed is okay and in accordance to paragraph 8 (c)(i) of schedule 8 of the Advocates Remuneration Order, 2014. Amount taxed for item 2 is Kshs 4,000. 00.

3. Item 3 & 4- Attendance for mention: Amount taxed is okay and in tandem with paragraph 8 (c)(ii) of schedule 8 of the Advocates Remuneration Order, 2014

4. Item 5,6,7 & 8- Court filing fees: The amount taxed is in accordance with paragraph 8 (f) & (g) of schedule 8 of the Advocates Remuneration Order, 2014. Amount taxed for item 5,6,7 and 8 is Kshs 50. 00, 100. 00,390. 00 and 500. 00 respectively.

13. Based on the foregoing, the tenants’ bill of costs dated April 26, 2022 is taxed at Kshs 67,708. 00 (Kenya shillings sixty-seven thousand, seven hundred and eight) as follows;i.Item 1: Kshs 50,672. 00ii.Item 2: Kshs 4,000. 00iii.Item 3: Kshs 1,400. 00iv.Item 4: Kshs 1,400. 00v.Item 5: Kshs 50. 00vi.Item 6: Kshs 100. 00vii.Item 7: Kshs 390. 00viii.Item 8: Kshs 500. 00

Orders 14. For the reasons given above I order as follows that:a.The tribunal taxes the tenant’s bill dated April 26, 2022 is taxed at Kshs 67,708. 00 (Kenya shillings sixty-seven thousand, seven hundred and eight).b.The tenant shall pay the costs within 30 days from the date of being served with a certified copy of the order.

HON A MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 13TH DAY OF OCTOBER,2022In the absence of partiesHON A MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL