Interstate Trade Company v Registered Trustees of Catholic Archdiocese of Mombasa [2022] KEBPRT 41 (KLR) | Controlled Tenancy | Esheria

Interstate Trade Company v Registered Trustees of Catholic Archdiocese of Mombasa [2022] KEBPRT 41 (KLR)

Full Case Text

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. E093 OF 2021

INTERSTATE TRADE COMPANY..........................................TENANT/APPLICANT

VERSUS

REGISTERED TRUSTEES OF

CATHOLIC ARCHDIOCESE OF MOMBASA..............LANDLORD/RESPONDENT

RULING

A.  Parties and Representatives

1.   The applicant Interstate Trade Company Limited is the Tenant and rented space for the business in the suit property MI/1/98 Ganjoni  (hereinafter known as the ‘tenant’)

2.   The firm of Mogaka Omwenga & Mabeya Advocates represent the Applicant/Tenant in this matter.

3.   The respondent Registered Trustees of Catholic Diocese of Mombasa is the Landlord and rented out space to the Tenant for the business in the suit property (hereinafter known as the ‘Landlord’)

4.   The firm of J.S Kaburu Co. Advocates represent the Respondent/Landlord in this matter.

B.   The Dispute Background

5.   The Respondent and the Tenant entered into a verbal tenancy in April 2021 and agreed that the Tenant would renovate the premises and not pay rent for one year in order to recover the costs of renovation.

6.   That on 10th October 2021 the Landlord stormed into the premises seeking to evict the Tenant and the contractors carrying out the renovations on the basis that they did not consent to the same.

7.   The Tenant/Applicant has since moved this tribunal by way of reference and a Notice of Motion application dated 11th November 2021 under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Tenant was seeking that pending the hearing and determination of the suit the Landlord allow the Tenant access to the premises and be restrained from interfering with the quiet enjoyment of the tenancy.

8.   The Tenant filed a reference and notice of motion application dated 11th November 2021 and acquired injunctory orders.

C.  The Landlord’s Claim

9.   The Respondent has filed a replying affidavit dated 26th January 2022.

10. Parties have filed submissions and the matter was fixed for ruling on 25th March 2022.

D.  List of Issues for Determination

11. It is the contention of this Tribunal that the issues raised for determination are as follows;

a.   Was there an agreement to recover renovation costs?

b.   Whether the Tenant is entitled to the orders sought under their application?

E.   Analysis and Findings

Whether the Tenant is entitled to the orders sought under their application?

12. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya Act at section 2defines a controlled tenancyas;

a tenancy of a shop, hotel or catering establishment—

(a) which has not been reduced into writing; or

(b) which has been reduced into writing and which—

(i) is for a period not exceeding five years; or

(ii) contains provision for termination, otherwise than for breach of covenant, within five years from the commencement

(a)  thereof;

13. From the pleadings filed by both parties, the Tribunal is convinced that there exists an agreement between the two parties, since the same has not been disputed. Since the tenancy was not written, it suffices as a tenancy under section 2(a) of Cap 301. The Tribunal then evidently has jurisdiction.

14. I have perused the Court file and have observed that the tenant avers that at the time of occupying the premises, the same were not in a tenantable state and required renovation. It is in light of this that they sought consent from the Landlord to carry out the same at their own costs which would be recovered from the rent for a period of one year.

15. The tenant further states that through a letter dated 11th October 2021 which is annexed in their supporting affidavit, that the Landlord consented to the Tenant conducting the renovations and authorized the Tenant’s architect to carry on with the constructions.

16. The Landlord in their replying affidavit avers that upon receiving the request from the Tenant, they informed the Tenant that they should not proceed to carry out the renovations, until the parties have a formal written agreement. The Landlord has however failed to provide proof disputing the contents as well as the authenticity of the letter annexed by the Tenant.

17. The Tenant has annexed the report from the engineer outlining the details of the renovations to be carried out, the costs of the same as well as the receipts of the costs incurred in carrying out the renovations so far.

18. The Tribunal is of the view that the proof attached by the Tenant has not been sufficiently disputed by the Landlord to prove that the Tenant acted contrary in proceeding with the renovations. The Tribunal is also convinced from the plans and the receipts that the Tenant has fulfilled the requirements needed to show the capacity to carry out the renovations.

19. It would be against the ends of justice to stop the renovations seeing as the Tenant has already incurred a substantial amount so far and the landlord has not given a cogent reason to facilitate ordering of the same.

20. Owing to the substantial amounts incurred by the Tenant, the Tribunal is convinced that there is a need to secure the interests of both parties upon evaluation and assessment by the Tribunal as to the nature of the renovations carried out by the Tenant what qualifies to be deducted from rent.

F.   Orders

a)   The upshot is that the application and reference dated 11th November 2021 filed by the Tenant are hereby allowed in the following terms;

a.   The Tribunal upholds the terms of the tenancy agreement between the Tenant and the Respondent to the extent that the Tenant shall recover the costs incurred for renovation of the premises.

b.   In light of order (b) above, the Tenant shall prepare the accounts for their costs incurred in renovation of the premises for the stated period together with submissions and serve the same upon the Landlord within 30 days.  The Landlord shall respond to both documents in 15 days upon service.

c.   The Landlord/Respondent is restrained from interfering with the occupation of the premises by the Tenant as well as the carrying out of the renovations.

d.   Compliance and assessment on 17th May 2022.

e.   Costs in cause.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 25thday ofMarch, 2022 in the presence of Ondiekiholding brief forOmwengafor theTenantand in the absence of theLandlord.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL