Harrison Kyalo Musyimi v Rapahel Kamayu, Chairman Kilome Constituency Development Fund Committee & Kilome Constituency Development Fund Committee [2021] KEBPRT 251 (KLR)
Full Case Text
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
TRIBUNAL CASE NO 765 OF 2020 (MACHAKOS)
HARRISON KYALO MUSYIMI.............LANDLORD/ RESPONDENT
VERSUS
RAPAHEL KAMAYU, CHAIRMAN KILOME
CONSTITUENCY DEVELOPMENT
FUND COMMITTEE.........................................TENANT/1ST APPLICANT
KILOME CONSTITUENCY
DEVELOPMENT FUND COMMITTEE........TENANT/2nd APPLICANT
RULING
A. Parties and their Representative
1. The Landlord/ Respondent, Harrison Kyalo Musyimi is the owner of plot no. 1626 trading as Sunrise Building situated at Malili Trading Centre within Konza city in Machakos County;
2. Learned Counsel Kitindio Musembi & Co. Advocates represents the Landlord in this reference. bmkitindioadvocates@gmail.com.
3. The 1st Respondent Raphael Kamayu, Chairman Kilome Constituency Development Fund and the 2nd Respondent Kilome Constituency Development Fund allegedly leased the second floor and two offices on the ground floor of the Landlord’s premises;
4. Learned Counsel Felix Momanyi & Co. Advocates represents the Respondents. felomomanyi@gmail.com
B. The dispute background
5. The genesis of the matter is that on 17th August 2020, the Landlord filed a reference and a Notice of Motion Application before this Tribunal complaining of the tenant’s failure to pay rent for consecutive period of eight months leading to an accrual of arrears to the sum of KShs. 936,695. 00 despite several demands having been levied upon them.
6. In response, the Tenant filed a notice of preliminary objection on 12th January 2021 citing the Tribunal’s lack of jurisdiction to entertain the claim as well as the Application and subsequently filed submissions on the same.
7. On 17th August 2020, however, the Landlord filed a notice to withdraw suit, which application was allowed on 4th March 2021, subject to costs to the tenants to be assessed by the Tribunal upon application by the tenants
8. The Tenants filed a party-to-party bill of costs dated 22nd March 2021 which Bill is drawn to the sum of KShs, 74,719. 00. The Landlord has filed submissions in response to the Bill dated 16th July 2021.
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 Tenants. 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. 17/08/2020 Taking instructions to defend a claim in the Business Premises and Rent Tribunal of an alleged rent arrears of KShs. 936,695 owed to Harrison Kyalo Musyimi the Landlord of Sunrise Building within Malili Trading Centre in Konza Techno City, perusing the certificate of Urgency and other supporting documents, checking on the law of the Landlord and Tenants (Shops, Hotels and Catering Establishments Act, bearing in mind the complexity of the matter, time expended by the Advocate, the importance of the matters in question 50,000/= 10,000/= 50,000/=
2. 16/12/2020 Attending tribunal to file notice of appointment 1,400/= 500/= 1,400/=
3.
Service of the notice of appointment 1,435/= Email 20/= 1,435/=
4.
Attending tribunal for hearing of the application dated 17/08/2020 4,000/= 1,400/= 4,000/=
5. 12/01/2021 Attending tribunal to file a notice of preliminary objection 1,400/= 500/= 1,400/=
6. 12/01/2021 Service of the Preliminary Objection 1,435/= Email 20/= 1,435/=
7. 28/01/2021 Attending tribunal for hearing the notice of preliminary objection 2,100/= 1,400/= 2,100/=
8. 24/02/2021 Attending tribunal to file submissions 1,400/= 500/= 1,400/=
9. 04/03/2021 Attending tribunal to confirm filing of submissions 2,100/= 1,400/= 2,100/=
10. 04/03/2021 Attending tribunal to file bill o costs 1,200/= 500/= 1,200/=
11. 04/03/2021 Attending tribunal for hearing of the bill 2,100/= 1,000/= 2,100/=
DISBURSEMENTS
12.
Telephone, photocopies, postage, sundry 5,000/= 1,000/= 5,000/=
Grand total 74,719 /= 17,840-/= 73,570 /=
Bill of costs taxed at 74,719 /= 17,840-/= 73,570 /=
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. Amount taxed at KShs. 50,000/=
2) Item 2- Attendance to the registry:Amount taxed is okay and in accordance toParagraph 8 (a) of Schedule 8of the Advocates Remuneration Order, 2014
3) Item 3- Service:Amount taxed is okay and in tandem withParagraph 8 (8) of Schedule 8of the Advocates Remuneration Order, 2014
4) Item 4- Attendance for hearing:Amount taxed is okay and in accordance toParagraph 8 (c)(i) of Schedule 8of the Advocates Remuneration Order, 2014
5) Item 5- Attendance to the registry:Amount taxed is okay and in accordance toParagraph 8 (a) of Schedule 8of the Advocates Remuneration Order, 2014
6) Item 6- Service:Amount taxed is allowed and in line withParagraph 8 (8) of Schedule 8of the Advocates Remuneration Order, 2014
7) Item 7- Attendance for hearing:Amount taxed is okay and in accordance toParagraph 8 (c)(ii) of Schedule 8of the Advocates Remuneration Order, 2014
8) Item 8- Attendance to the registry:Amount taxed is okay and in accordance toParagraph 8 (a) of Schedule 8of the Advocates Remuneration Order, 2014.
9) Item 9- Attendance for mention for compliance:Amount taxed is okay and in accordance toParagraph 8 (c)(ii) of Schedule 8of the Advocates Remuneration Order, 2014
10) Item 10- Attendance to the registry:Amount taxed is okay and in accordance toParagraph 8 (a) of Schedule 8of the Advocates Remuneration Order, 2014.
11) Item 11- Attendance for hearing:Amount taxed is okay and in accordance toParagraph 8 (c)(ii) of Schedule 8of the Advocates Remuneration Order, 2014
12) Item 11- Attendance for hearing:Amount taxed is okay and in accordance toParagraph 8 (c)(ii) of Schedule 8of the Advocates Remuneration Order, 2014
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 22nd March 2021 is taxed at KShs. 73,570 (Kenya Shillings Seventy-Three Thousand, Five Hundred and Seventy)
12. ORDERS
For the reasons given above I ORDER as follows that:
1. The Tribunal taxes the Tenant’s bill dated 22nd March 2021 at KShs. 73,570 (Kenya Shillings Seventy-Three Thousand, Five Hundred and Seventy).
2. The Landlord shall pay the costs within 30 days from the date of being served with a certified copy of the order in default the Tenant shall recover the same from rent and/or execute.
a) Tenant can offset from the rent of December 2019.
HON. ANDREW MUMA
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 9TH SEPTEMBER 2021 IN THE PRESENCE OF THE COUNSEL FOR THE TENANT.
HON. A. MUMA
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL