Kiarie v Rono & another [2022] KEBPRT 207 (KLR)

Kiarie v Rono & another (Tribunal Case E011 of 2022) [2022] KEBPRT 207 (KLR) (19 April 2022) (Ruling)

Neutral citation: [2022] KEBPRT 207 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E011 of 2022

Gakuhi Chege, Vice Chair

April 19, 2022

Between

Francis Kiarie

Applicant

and

Fredrick Rono

1st Respondent

Gillete Traders Auctioneers

2nd Respondent

Ruling

1. By a reference dated 11th February 2022, the Tenant moved this Tribunal complaining that the 1st Respondent instructed the 2nd Respondent to auction his movable property pursuant to which the latter issued a proclamation of attachment alleging that rent of Kshs.135,200/- had not been paid.

2. The tenant simultaneously filed a motion of even date seeking restraining orders against the Respondents which is supported by his affidavit and grounds on the face thereof.

3. It is the tenant’s case that he has been paying rent of Kshs.11,000/- per month excluding electricity and water services. On 10th February 2022, the 2nd Respondent went to the suit premises and proclaimed movable properties as evidenced by annexure ‘FK1’.

4. It is deposed that the tenant had been paying rent until sometimes in the middle of the year 2021 although the landlord does not issue receipts. He runs a hotel in the suit premises.

5. The tenant states that the landlord has exaggerated the amount in arrears with an intention of frustrating him to vacate the premises without considering the money invested in the business although he was willing to clear the rent arrears in instalments.

6. Interim orders of injunction were granted on 17th February 2022 pending hearing of the application inter-partes.

7. The application is opposed through a replying affidavit of Philip Mwaura trading as Gillete Auctioneers (2nd Respondent) sworn on 14th March 2022 confirming that he received instructions from the 1st Respondent to levy distress on 10th February 2022 vide annexure ‘PM-2’ and proceeded to proclaim on the same date vide annexure ‘PM-3’.

8. The said proclamation was done in good faith and there was no intention to evict the tenant.

9. The tenant filed a further affidavit sworn on 22nd March 2022 admitting being in rent arrears of Kshs.88,000/- being rent for August 2021 to March 2022. He deposes that his business was affected by Covid-19 pandemic regulations and has taken time to recover the ensuing loss. No receipts were issued for rent paid up to July 2021 despite requests being made to do so to the landlord.

10. The tenant wishes to clear the admitted rent in monthly instalments so as to clear by December 2022.

11. There were previous proceedings between the parties vide Eldoret BPRT Case no. 164/2019 wherein an order of injunction was issued on 28th May 2019. On 7th June 2019, the said case was concluded and the landlord’s notice dated 16th April 2019 was struck out as incompetent and being in contravention of section 4(2) of Cap. 301.

12. The tenant complains of lack of proper maintenance and repairs by the landlord although in my view the issue is not subject matter of the dispute before this Tribunal.

13. Although the tenant appear to refer to a replying affidavit by the landlord, I was unable to trace it in the court record and as such it is my considered view that that there is need for the two parties to file statements of rent account to enable the Tribunal determine the amount of rent owing before making any further orders in this matter.

14. In the premises, I direct as follows:a.Both the landlord and tenant shall file and exchange statements of rent account within the next thirty (30) days hereof with a view to determination of the amount of rent arrears due to the landlord.b.The tenant shall file his proposal on how the rent due shall be cleared within Thirty (30) days hereof.c.The interim orders given on 16th February 2022 shall remain in force pending compliance with the above orders.d.The matter shall be fixed for mention after Thirty (30) days hereof to confirm compliance and further directions.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF APRIL 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Applicant/Tenant in personNo appearance for the RespondentsFurther order:Mention on 6th June 2022. Mention notice to issue.HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL