Psalm 40 & another v Child of God Centre [2024] KEBPRT 183 (KLR)

Psalm 40 & another v Child of God Centre (Tribunal Case 614 of 2019) [2024] KEBPRT 183 (KLR) (22 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 183 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 614 of 2019

CN Mugambi, Chair

January 22, 2024

Between

Psalm 40

1st Applicant

Jowarise Agency Limited

2nd Applicant

and

Child of God Centre

Respondent

Ruling

1. The landlord’s application dated 2. 7.2019 seeks orders to the effect that the tenant be ordered to pay rent arrears amounting to Kshs 424,000/= failing which the landlord prays that it be allowed to levy distress for rent. The landlord has also prayed that in the alternative, the tenant be ordered to vacate the premises, police assistance in the enforcement of the orders and cots of the application have also been sought.

2. The landlord has sworn an affidavit in support of its application where it has been deponed that the tenant who pays rent at Kshs 60,000/= per month is now in rent arrears equivalent to seven months.

3. The landlord has also deponed that the tenant has admitted to being in rent arrears and actively committed itself in the mode of liquidation of the arrears.

4. It is deponed that after due reconciliation, the tenant owes the landlord Kshs 424,000/= in rent arrears.

5. The tenant has sworn a replying affidavit on 11. 12. 2023 wherein one Evans Aseneka, a director of the Respondent has deponed that the orders sought ought not to be granted because the Respondent is a private school of great sentimental value to the children and teachers.

6. The tenant has deponed that it has on several occasions made payment to the Applicant and the rent arrears as at 11. 10. 2022 was Kshs 322,000/= which the Respondent is willing to pay in installments of Kshs 90,000/= every month made up of Kshs 60,000/= as rent and Kshs 30,000/= to cover the arrears.

7. The Respondent/tenant does not dispute being indebted to the landlord.

8. The only issue that arises for determination is whether the landlord is entitled to the prayers sought its application.

9. The tenant does not dispute that it owes rent to the landlord. This dispute dates back to the year 2019 when the landlord applied for leave to levy distress for the sum of Kshs 424,000/= owing then. Whereas the tenant states that as at 11. 10. 2022 it owed the landlord rent in the sum of Kshs 322,000/=, the tenant does not state whether or not it has paid rent for the year 2023, seeing as it is that, the Replying affidavit was sworn on 11. 12. 2023.

10. The landlords right to levy for distress is provided for under Section 3 of the Distress for Rent Act Cap 293 of the Laws of Kenya, which provides as follows;-“Subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrears and due upon a grant. Lease, demise or contract shall have the same remedy by distress for the recovery of the rent or rent service as is given by the common law of England in a similar case.”

11. In this case, it is not disputed that the tenant is in rent arrears, effectively therefore, the landlords right to levy distress for rent cannot be resisted by the tenant.

12. I have in the circumstances, no problem in granting the application in terms of prayers 2, 4 and 5 of the application.

13. Prayer 3 of the application is declined for the simple reason that if the landlord is desirous of terminating the tenancy herein, then it is obligated to issue the mandatory notice to terminate tenancy under Section 4(2) of Cap 301. That, the Respondent has not done.

14. Consequently, and in conclusion therefore, the application is allowed in terms of prayers 2, 4 and 5.

15. The complaint filed by the Applicants has been fully answered by the above findings and it is therefore allowed in the same terms.

16. The tenant will bear the costs of the application and the complaint.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF JANUARY 2024. HON. CYPRIAN MUGAMBICHAIRPERSON22. 01. 2024Delivered in the presence of; Ms. Nyamori for the TenantIn the absence of the Landlords.