Gerrick (K) Limited v Dakianga Distributors Limited [2022] KEBPRT 52 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 32 OF 2018 (KISII)

GERRICK (K) LIMITED………………….………………TENANT/RESPONDENT

-VERSUS-

DAKIANGA DISTRIBUTORS LIMITED…………...…LANDLORD/APPLICANT

TAXATION RULING

A.  Parties and Their Representative

1.  The Tenant/Applicant, GERRICK (K) LIMITED(hereinafter referred to as the “Tenant”) has been in occupation of the Premises belonging to the 1st Respondent for a term of 5 years and 3 months, from May 2015 to 31st July 2020

2.  The Firm of Ochoki & Company Advocates represent the Tenant/Applicant. violetmoraa89@gmail.com, wochoki@yahoo.com

3.  The Landlord/1st Respondent, DAKIANGA DISTRIBUTORS LIMTIED(hereinafter referred to as the “Landlord”) is the registered owner and Landlord of the Premises rented out to the Tenant/Applicant

4.  The 2nd Respondent HEZRON GETUMA ONSONGO T/A HEGEONS AUCTIONEERS(hereinafter referred to as the “Auctioneer”) was authorized by the Landlord to act for them in distressing for rent from the Tenant

5.  The Firm of Nyamurongi & Company Advocates represent the Landlord. info@nyamurongiadvocates.com

B. THE DISPUTE BACKGROUND

6.  On 23rd November 2021, the Tenant filed a reference and a notice of motion application under certificate of urgency before this Tribunal alleging that the Landlord had instructed the Auctioneers to proclaim properties belonging to the Tenant as distress for rent arears amounting to Kshs. 1,044,000. 00/-.

7.  In response, the Landlord filed a replying affidavit dated 12th February 2021 where he relied on the decision of Honourable J.M Mutungi of the Environment and Land Court Act in the matter of Dakainga Distributors Limited Versus Pebo (Kenya) Limited Appeal No. 3 of 2018, in which matters pertaining the tenancy relationship between the Tenant and Landlord were addressed. The aforesaid decision held that a tenancy relationship existed between the Landlord and Tenant herein, by virtue of the unexecuted lease, which was for a term of 5 years and 3 months at the initial rent of Kshs. 30,000. 00/- per month. The Landlord further averred that the Tenant had defaulted in the payment of rent and had arrears amounting to Kshs. 1,044,000. 00/-.

8.  On 11th June 2021 the Tribunal gave orders that the Tenants application 23rd November 2021 was dismissed with costs, to the Landlord.

9.  The Landlord filed a party and party bill of costs dated 17th August 2021 which bill is drawn to the sum of KShs. 93,408. 84.

10. The only remaining issue 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. 10/02/2019 Instruction fees to oppose the reference for rent arrears of KShs. 1,252,800

VAT @ 14% on the instruction fees 55,056/=

7,707. 84/=

55,056/=

2. 12/02/2019 Drawing Affidavit in reply to application dated 23/11/2018

Attending the Tribunal registry to file Notice to Cross-examine and reply affidavit 500/=

1,400/=

500/=

1,000/=

3. 15/02/2019 Serving replying affidavit on Tenants Advocates in Kisii 1,4000/=

1,400/=

4. 22/02/2019 Attending court for hearing 4,000/=

4,000/=

5. 9/4/2019 Attending Tribunal registry to file submissions 1,400/=

1,000/=

6. 13/05/219 Serving Submissions upon the Tenant’s Advocates in Kisii 1,400/=

1,400/=

7. 25/08/2020 Serving letter to the Chairman of the Tribunal at Nairobi 7,000/=

4,608. 40/=

8. 1/03/2011 Attending court for mention 1,400/=

1,400/=

9. 30/03/2021 Attending court for mention 1,400/=

1,400/=

10. 12/04/2021 Attending court for mention 1,400/=

1,400/=

11. 21/05/2021 Attending court for mention 1,400/=

1,400/=

12. 11/06/2021 Attending court for judgement 1,400/=

1,400/=

13.

Attending the registry to file the Bill of Costs 500/=

500/=

14.

Serving this Bill of Costs upon the Tenant’s advocates in Kisii 1,400/=

1,400/=

15.

Attending court for taxation 4,000/=

1,400/=

SUBTOTAL

92,763. 84 /= 75,864. 40 79,864. 40/=

Add 16% VAT

12,138. 30 12,778. 30/=

TOTAL AMOUNT

88,002. 70 92,642. 70/=

COURT FEES

16.

Court fees on Notice to examine 270/=

270/=

17.

Court fees on submissions 50/=

50/=

18.

Court fees on the Bill of Costs 325/=

325/=

Sub Total 645/=

645/=

GRAND TOTAL 93,408. 84/=

BILL OF COSTS TAXED AT 93,408. 84/=

93,287. 70/=

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.  Excluding VAT at 14 %

Amount taxed at Kshs. 55,056/=

2)  Item 2- Drawing Affidavit-Amount taxed is okay and in accordance to Paragraph 8(g) of Schedule 8 of the Advocates Remuneration Order,2014.

- Attending the Tribunal registry to file Notice to Cross-examine and replying affidavit –Amount taxed is excessive and not in accordance to Paragraph 8(b) of Schedule 8 of the Advocates Remuneration Order, 2014. Amount taxed Kshs. 1,000/=.

3)  Item 3- Serving Replying Affidavit on Tenant’s Advocates in Kisii:

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

4)  Item 4- Attending court for hearing:

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

5)  Item 5- Attending Tribunal registry to file Submissions:

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

Amount taxed Kshs. 1,000/=.

6)  Item 6- Attending Tribunal registry to file Submissions:

Amount taxed is okay and in accordance to Paragraph 8(e)(i) of Schedule 8 of the Advocates Remuneration Order, 2014.

7)  Item 7- Serving letter to the Chairman of the Tribunal at Nairobi;

Amount taxed is excessive and not in accordance to Paragraph 8(e)(i)(ii) of Schedule 8 of the Advocates Remuneration Order, 2014.

Amount taxed Kshs. 4,608. 40/-

8)  Item 8- Attending court for mention;

Amount taxed is not excessive and not in accordance to Paragraph 8(a) of Schedule 8 of the Advocates Remuneration Order, 2014.

9)  Item 9- Attending court for mention;

Amount taxed is not excessive and not in accordance to Paragraph 8(a) of Schedule 8 of the Advocates Remuneration Order, 2014.

10)    Item 10- Attending court for judgement;

Amount taxed is not excessive and not in accordance to Paragraph 8(a) of Schedule 8 of the Advocates Remuneration Order, 2014.

11)    Item 11- Attending court for judgement;

Amount taxed is not excessive and in accordance to Paragraph 8(a) of Schedule 8of the Advocates Remuneration Order, 2014

12)    Item 12- Attending court for judgement;

Amount taxed is not excessive and in accordance to Paragraph 8(a) of Schedule 8 of the Advocates Remuneration Order, 2014.

13)    Item 13- Attending the registry to file the Bill of costs;

Amount taxed is excessive and not in accordance to Paragraph 8(g) of Schedule 8 of the Advocates Remuneration Order, 2014.

14)    Item 14- Serving Bill of Costs upon the Tenant’s advocate in Kisii

Amount taxed is excessive and not in accordance to Paragraph 8(e)(i)(ii) of Schedule 8 of the Advocates Remuneration Order, 2014.

15)    Item 15- Attending court for taxation;

Amount taxed is excessive and not in accordance to Paragraph 8(c)(i) of Schedule 8 of the Advocates Remuneration Order, 2014.

Amount taxed Kshs. 1,400. 00/-.

11. 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.

12. Based on the foregoing, the Landlord’s Bill of Costs dated 17th August 2021 is taxed at KShs. 93,287. 70/=

ORDERS

For the reasons given above I ORDER as follows;

1.  The Tribunal taxes the Landlord’s bill dated 17th August 2021 at Kshs. 93,287. 70/=

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 1stday ofMarch, 2022 in the presence of Nyamwongifor the Landlordand in the absence of the Tenants.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL