Rotich v Rose Jeptoo Tangwa t/a Waridi Store [2024] KEBPRT 315 (KLR)

Rotich v Rose Jeptoo Tangwa t/a Waridi Store (Tribunal Case E053 of 2023) [2024] KEBPRT 315 (KLR) (17 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 315 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E053 of 2023

CN Mugambi, Chair

January 17, 2024

Between

Winnie Jepkosgei Rotich

Applicant

and

Rose Jeptoo Tangwa t/a Waridi Store

Respondent

Ruling

Introduction 1. The tenant’s application dated 12. 9.2023 seeks orders that there be a stay of execution of the orders of the Tribunal made on 30th August 2023 pending the assessment of party and party costs in BPRT Case No. E069 of 2022 and also pending the determination of a cross suit filed in Eldoret small claims court, Case No. E759 of 2023 between the Applicant/tenant and the Respondent/landlord.

The Applicant’s depositions 2. The Tenant’s affidavit in support of her application sworn on 12. 9.2023 may be summarized as follows:-a.That on 30. 8.2023, the Tribunal allowed the landlord to levy distress against the tenant for the sum of Kshs. 166,000/= being the rent arrears.b.That in a suit, BPRT Case No. E069 of 2022, between the same parties, the landlord was ordered to pay the tenant the costs of the said suit.c.That the tenant has filed a bill of costs in Eldoret BPRT Case No. E669 of 2022 claiming the sum of Kshs. 124,450/= incosts from the landlord.d.That the tenant has also sued the landlord in the Eldoret small Claims Court, Case No. E759 of 2023 for losses occasioned by the closure of the tenant’s business premises.e.That in the Small Claims Court, the tenant is claiming from the landlord Kshs. 523,556. 25/= and Kshs. 495,000/= respectively and which claims the tenant believes are prima facie merited.f.That the landlord has irregularly and illegally instructed auctioneers to levy distress and execute the orders of 30. 8.2023 before the orders are adopted in the magistrates court as required by law and before a certificate allowing the distress has been issued by the Tribunal.g.That the tenant therefore prays that the execution of the orders be stayed.

The Landlord’s replying affidavit 3. The Replying affidavit sworn by the landlord on 2. 10. 2023 may be summarized as follows;-a.That the tenant is in rent arrears amounting to Kshs. 244,000/= due from March 2022 up to the date of swearing the application.b.That the tenant has filed a reference against the landlord’s notice to terminate tenancy but she has never prosecuted the same.c.That the tenant only filed her bill for taxation on 6. 2.2023 while the ruling was delivered on 17. 1.2023. d.That the outcome of the small claims court case No. E759 of 2023 remains unknown and it cannot therefore be used as a set off against the landlord’s claim.e.That the tenant has not filed any appeal against the Tribunal’s ruling and orders of 30. 8.2023 and it is only fair that the landlord is allowed to enjoy the fruits of her judgment.f.That the landlord is in the process of filing the court orders for execution.g.That the tenant apparently has no intention of paying the rent or vacating the premises.h.That the tenant being in rent arrears, is undeserving of the remedies she has sought and the tenant ought to be ordered to clear all rent arrears before the orders sought are granted.

The Tenant’s supplementary affidavit 4. The supplementary affidavit sworn by the tenant on 7. 11. 2023 may be summarized as follows;-a.That the execution of the orders of 30. 8.2023 is premature for want of compliance with Section 14 of Cap 301. b.That the landlord has not tabled a certificate permitting the levying of distress for rent.c.That the party and party costs are pending taxation before the Tribunal.d.That the existence of the small claims court case has not been disputed and hence a set off has not been ruled out.

Analysis and determination 5. The only issue that arises for determination is whether the tenant is entitled to the orders sought in her application. The tenant’s Counsel has properly, in his submissions directed the Tribunal to the law governing stay of execution of proceedings pending other proceedings in order 22 Rule 25 of the Civil Procedure Rules which provides as follows;-“where a suit is pending in any court against the holder of a decree of such court in the name of the person against whom the decree was passed, the court may on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been denied.”

6. From the application, I do note that the Applicant seeks to stay the orders issued on 30. 8.2023 for the reason that she has filed a bill for taxation in Case No. BPRT E069 of 2022 Eldoret, and another case in the Small Claims court. The decision of the Tribunal in Case No. E069 of 2022 was delivered on 17. 1.2023 in the presence of Counsel for the tenant. In the said ruling, the Tribunal directed the tenant to continue paying rent to the Respondent and if the Respondent declined the rent, the tenant was to deposit the same in the Tribunal.The said ruling also granted the costs of the suit to the tenant. I have perused the bill of costs filed in court by the tenant- and I do note that although the same is dated 6. 2.2023, it was filed in the Tribunal on 4. 9.2023. the tenant has not explained this delay which in my view is unreasonable.

7. The Respondent has deponed that the tenant owes rent from March 2022 to date. This effectively means that the rent was owing even long before the court delivered its ruling on 17. 1.2023 and continued to accumulate. The rent remains unpaid even as the tenant’s bill pends in court for taxation as it is also clear that the tenant has not taken any steps to have the bill taxed. The payment of rent is a continuous exercise and the rent will continue to accumulate even as the Bill pends taxation. I do not in the circumstances think it would be fair to keep the Respondent away from the benefits of renting out the premises on the basis of a yet to be taxed bill.

8. The Applicant has also deponed that she has filed a suit in the Eldoret Small Claims court for compensation for losses arising out of the conduct of the Respondent. Again, the outcome of the suit is not guaranteed in favour of the tenant. It is not known when the suit will be determined and even if the tenant was to be successful, the quantum of the decree remains speculative. For these reasons, I do not think it would be fair to order that the Respondent continues not to receive rent.

9. Order 22 Rule 25 is couched in permissive terms. It bestows upon the court the discretionary power to allow or not to allow an application made under the provisions of the said section. It is trite that discretionary power ought to be exercised judiciously and not capriciously. The main concern of the Tribunal while exercising its discretionary power should always be to do justice to the parties that appear before it. In the circumstances of this case, it would be manifestly unfair to deny the landlord the benefits of the tenancy considering the tenant was in rent arrears during the pendency of case No. E069 of 2022 and even in the instant case.

10. I am of the further opinion that all is not lost for the tenant. The tenant is still in the suit premises as no orders of eviction may be issued before her reference is heard and determined. In the even that she finally secures a certificate of costs in her favour in case No. E069 of 2022 or a decree in her favour in the Small Claims court, she can always offset the same against any future rent payable or generally execute against the landlord.

11. The tenant has raised issues with the fact that the Respondent has not sought to have the decision of the court adopted for purposes of execution and that the Respondent did not obtain a certificate permitting the levy of distress. My view of this matter is that I do not think these can be grounds of stay of execution pending the determination of related matters. The application by the successful party to have the decision of the Tribunal adopted for purposes of execution is just but a step in the execution process. I also think the fact that the Tribunal expressly made an order for the levying of distress for rent against the tenant, no further certificate was necessary to permit the levy of distress. I am therefore of the view that the consideration of these objections by the tenant is not central to the determination of this application.

12. Consequently, and in view of the foregoing, I do not find any merits in the tenant’s application dated 12. 9.2023 and the same is dismissed with costs to the Respondent.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17THDAY OF JANUARY 2024. HON. CYPRIAN MUGAMBICHAIRPERSON17. 1.2024