Rhumba Health & Fitness Co. Ltd v Osidai Limited [2022] KEBPRT 859 (KLR)

Rhumba Health & Fitness Co. Ltd v Osidai Limited (Tribunal Case E506 of 2022) [2022] KEBPRT 859 (KLR) (10 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 859 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E506 of 2022

Andrew Muma, Vice Chair

November 10, 2022

Between

Rhumba Health & Fitness Co. Ltd

Tenant

and

Osidai Limited

Landlord

Ruling

A. Parties And Representatives 1. The applicant Rhumba Health Fitness is the tenant and rented out space on the suit property situated on Plot No 37/238/6 (Unit OP 71) (hereinafter known as the ‘tenant’)

2. The firm of Victor Ochieng Omondi & Co Advocates represent the applicant/tenant in this matter. litigation.vooadvocates@gmail.com

3. The respondent Osidai Limited is the landlord and rented out space for the business in the suit property to the tenant (hereinafter known as the ‘Landlord’)

4. The firm of Macharia Mwangi Njeru Advocates represent the respondent/landlord in this matter. legal@mmnlaw.co.ke

B. The Dispute Background 5. The tenant/applicant moved this tribunal by way of reference and a notice of motion application dated 9th June under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The tenant was seeking amongst other orders that pending the hearing and determination of the reference that the tribunal be pleased to give orders restraining the landlord from evicting, harassing the tenant, raising rent as well as disposing or selling of the tenant’s goods that were in their custody pending the hearing and determination of the suit.

C. Jurisdiction 6. The jurisdiction of this tribunal is not in dispute.

D. The Tenant’s Claim 7. The tenant filed a reference and notice of motion application dated June 9, 2022 which pleadings form the basis of this claim.

E. The Landlord’s Claim 8. The tenant has filed a replying affidavit dated July 5, 2022 as well as a supplementary affidavit dated August 24, 2022.

9. Parties have filed submissions and the matter was fixed for ruling on November 10, 2022.

F. List Of Issues For Determination 10. It is the contention of this tribunal that the issues raised for determination are as follows;Whether the tenant is in breach of the agreement entered into between themselves and the landlord.

G. Analysis And Findings Whether the tenant is in breach of the oral agreement entered into between themselves and the Landlord. 11. The present case involves an alleged breach of the terms and conditions of a tenancy agreement. The tenant avers that at the time of entering into the tenancy agreement with the landlord, they were offered additional space to serve as storage space. The same was then surrendered to the landlord and the tenant issued with an alternative for which they could not afford the rent.

12. The landlord on the other hand states that it was never a term of the agreement that the tenant would be given extra space to serve as storage space. The tenant as a result of no storage space resulted to storing goods on an adjacent wall to the premises which the landlord has termed as a common area on the premises and alleges that the use of the same by the tenant is constricting its use by other tenants.

13. It is as a result of this that the landlord issued the tenant with letters asking them to remove their goods from the said area through correspondence as annexed in their replying affidavit. After an examination of the said letters, I find that the notice period was no sufficient as the letter was issued on April 27, 2022 and was to take effect on May 3, 2022, which period was less than that required under Cap 301. Neither was it in the prescribed format as contemplated by the act.

14. In addition the landlord provided space initially which was later converted to a generator room and ought to indeed provide another space the tenant can use to store the items, estoppel by conduct.

H. Ordersa.The upshot is that the tenant’s application dated June 9, 2022 is hereby upheld in the following terms;b.The landlord’s shall return the tenant’s goods immediately if still held by them.c.The landlord shall provide alternative storage space for the goods and equipment as the previous two spaces allocated to the tenant were handed back to the landlord, failure to which the tenant can continue using the space they currently have.d.Each party shall bear their own costs.

JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 10TH DAY OF NOVEMBER, 2022 IN THE PRESENCE OF WAMBUA FOR THE TENANT AND KIMANI FOR THE LANDLORD.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL