Francis Magero v Marathon Distributors Limited [2022] KEBPRT 70 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. E787 OF 2020 NAIROBI

FRANCIS MAGERO.....................................................TENANT/APPLICANT

VERSUS

MARATHON DISTRIBUTORS LIMITED......RESPONDENT /LANDLORD

RULING

THE BACKGROUND OF THE DISPUTE

1. The tenant moved this Tribunal on 20th December 2021 by way of reference opposing a notice dated 16th December, 2021 stating that the lease agreement between the parties expires in 2024. The duration of the said notice was from 1st November 2021to 31st December 2021.

2. Correspondences dated 15th December, 2021 and 6th November 2021 are also produced which were sent to remind the Tenant to vacate and vacating costs were annexed.

3. It appears that parties were negotiating a sale of the business to one Esther Njora which seems to have made progress and consideration exchanged hands only for the Tenant to back off before completion.

4. The lease dated 20th June 2011 was between Marathon Distributors Limited and Phylis Njeri Kariuki. There seems to have been a sale of the business between Phylis Njeri Kariuki and Francis Gumo Magero leading to a lease dated 24th November 2021 between Marathon Distributors and Francis Magero, the subject matter of this reference.

5. In their replying affidavit the Landlord has annexed a letter of caution dated 1st August 2020 that was issued to the Tenant as well as another letter dated 6th July 2021 where the Landlord was demanding for rent and arrears.

6. On 28th October 2021 the Landlord issued a termination notice of the lease agreement which was opposed by the Tenant because of time. On 1st November 2021, a two months’ notice was issued pursuant to which the reference was filed.

7. I have perused the written submissions of both parties and find that the main issue that arises is the ability of the Tenant to pay rent on time and electricity and in addition a new Tenant interested in the premises which prompted the parties to start negotiation an exit for the Tenant but the terms did not look favourable to the existing Tenant and he abandoned the negotiations. I have also noted that in the course of the hearing proceedings the Tribunal had to remind the tenant to pay rent.

8. The Tenant does not appear to be conforming to the lease agreement which clearly stipulates 14 days’ delay would lead to distress. I have noted with concern the various letters of demand for rent arrears by the Landlord. This is one Tenant who ought to have taken advantage of the negotiations and proceed to offload the business.

9. I have also noted that the Tenant was in default even as this matter progressed in court and still has arrears to date in spite of several orders by this Tribunal to offset the same. The Tenant in addition pays rent when they want and pays how much they want.  This has caused the Landlord untold financial suffering.

10. It is my considered opinion that the relationship has broken down between the parties to an extent that it is no longer untenable I therefore do not find any merit in the Tenant’s application dated 20th December 2021 and dismiss the same with costs.

11. The Tenant and Landlord can resume negotiations if they so wish that had begun as per exhibit FM2 since I notice some money has already exchanged hands.  I don’t want to close the door to further mediation and I urge the Landlord to participate on condition that any arrears are cleared as well.  If in the next seven days no meeting would have taken place, earlier orders will stand lifted and Landlord will be at liberty to distress and obtain vacant possession.

12. Matter will be mentioned on 7th March 2022 to confirm progress.

13. Reference and application are settled on those terms each party shall take care of their own costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 18thday ofFebruary, 2022 in the presence of Onyangofor theApplicant/Tenantand Mutindaholding brief forOndiekifor theLandlord.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL