Neff Limited v Ramadbhai T Patel, Madhusudan I Patel & Mahndrabhai J Patel (As Trustees of the Patel Samaj Mombasa) [2019] KEBPRT 1 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. 10 OF 2019 (MOMBASA)

NEFF LIMITED......................................................................................................................TENANT

VERSUS

1. RAMADBHAI T. PATEL

2. DR. MADHUSUDAN I. PATEL

3. MAHNDRABHAI J. PATEL

(As Trustees of the PATEL SAMAJ MOMBASA)..................................LANDLORD/1ST RESPONDENT

RULING

The Landlord/Respondent herein served the Tenants/Applicants with the notice to terminate the Tenancy dated 14th December 2018.  The grounds of termination of Tenancy are stated in the notice.  The notice was to take effect on 1st March 2019.

The Tenant/Applicant did not wish to comply with the notices and filed the reference under section 6 of Cap 301 on 23rd January 2019.  The Tenant/Applicant on 3rd May 2019 filed a notice of preliminary objection challenging the competency of the Landlord’s notice.

The advocates of the parties have filed written submissions which the Tribunal has read in details.  The Advocates of the parties also highlighted their submissions before the Tribunal.  It is trite law that a preliminary objection should be raised only on issues of pure law and must be based on admitted facts (Mukisa Biscuit Case 1969 EA 696).

The following facts are not in dispute;

1. The parties to the reference are the same parties to the reference BPRT 42/2016 Mombasa) in which the Tribunal delivered judgment on 16th November 2018 and made the following orders;

a. The rent payable by the Tenant is assessed at shs 54,431 for each shop excluding VAT if payable with effect from 1st May 2016.

b. The Tenant shall pay the Landlord the costs of the reference.

c. Costs shall be agreed or taxed by the Tribunal.

d. The Tenant has appealed against the judgment of the Tribunal in BPRT 42/2016 in Civil Appeal No. 25/2018 and there are stay orders.

The above facts are not in dispute.  The Tribunal upon consideration of the written submissions and oral submissions of the advocate of the parties and upon perusal of all the pleadings in the matter makes the following findings;

1. The subject matter of the reference before the Tribunal (BPRT 10/2019) is termination of tenancy.  Tribunal case No. 42/2016 was in respect of rent assessment.

2. The cause of action (termination of tenancy) and Rent Assessment are separate cause of action and the Landlord is entitled to serve the Tenant with the Landlord’s notice dated 14th December 2019.  Grounds No. 1 (b) and (C) have no merits.

3. The issue as to whether the Tenant was in arrears of rent as at the date the Landlord’s notice was issued (14th December 2018) is an issue of evidence and not pure law.

The Tribunal has no doubt in its mind that the preliminary objection dated 2nd May 2019 has not met the threshold of a preliminary objection.  The Tribunal makes the following orders;

1. The Tenant’s preliminary objection dated 2nd May 2019 is dismissed.

2. The costs of the preliminary objection shall abide the outcome of the reference.

3. The reference shall be heard in the Tribunal’s next session as Mombasa.

Ruling delivered this 5th day of July 2019. In the presence of Hassan for the Landlord Mutisyaholding brief for Mrs Moorlaj for the Tenant/Applicant.  Landlord’s advocateabsent.

MBICHI MBOROKI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL