Samuel Kanyari, James K. Kinama & Everlyne Karungari v Arkland Trading Company (K) Ltd; National Hospital InsuranceFund(Interested Party) [2021] KEBPRT 83 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 465  OF 2016  (NAIROBI)

SAMUEL KANYARI

JAMES K. KINAMA

EVERLYNE KARUNGARI....................................... TENANTS/APPLICANTS

VERSUS

ARKLAND TRADING COMPANY (K) LTD......LANDLORD/RESPONDENT

NATIONAL HOSPITAL INSURANCE FUND..............INTERESTED PARTY

RULING

1. On 18TH June 2021, I directed the parties herein to file further affidavits to enlighten this court on the current situation in respect of the Landlord/Tenant relationship between them in view of expiry of the initial lease on 30th April 2016 and thereafter a lapse of another 5 years.

2. On 13th August 2021, one David  Matu Wahome who is the managing Director of M/S Arkland Company Kenya Limited swore an affidavit to the effect that the company has been negotiating with the Landlord for grant of extension of the lease which expired on 31st May 2016 for a further term.

3. According to the deponent, negotiations have not yet been concluded and that the process had been overtaken by events due to Covid-19 pandemic which has negatively affected operations on account of low volume of business and that about 15 stalls were vacant and many of the subtenants were in arrears of rent and were finding it difficult to pay their rents.

4. He further deposes that due to low business activities, the company was finding it difficult to continue leasing the premises even if the extension of lease was granted.

5. He therefore seeks that the company be granted six months from the date of swearing the affidavit to enable the subtenants get alternative business premises and deliver vacant possession to the interested party/Landlord.

6. The 2nd Applicant, James Kyalo Kinama on the other hand swore an affidavit on 20th August 2021 stating that they (Applicants) have been engaging the Respondent (Arkland Trading Co. Ltd) to extend their period of tenancy since their units are business premises where they had been for a long period and evicting them without giving adequate time would destroy their businesses.

7. The 2nd Applicant deposes that their discussions on renewing the lease have not been successful and they were finding it difficult to pay the total rent for the premises to the interested party because of low business activities as most of the stalls are not occupied.

8. They therefore request for more time to look for alternative business premises to enable them move on with their lives and businesses to be able to support their families.

9. They implore upon this Tribunal to ensure that as small business people their livelihoods are not unduly affected for no fault of their own.

10. They request for sufficient time to vacate the premises to be granted by this Tribunal.

11. A third affidavit by one Wilson Kamau the property manager of the interested party sworn on 19th August 2021 was also filed in compliance with the orders of 18th June 2021.

12. He deposes that the interested party is the Landlord of the said premises which is illegally in possession of the Respondents.

13. The interested party entered into a lease agreement with Arkland Company Limited dated 30th April 2010 which was for a period of six (6) years terminating on 31st May 2016.

14. After the lease terminated, the Respondents remained in possession of the said premises whereupon the landlord locked the premises in an attempt to evict the Respondent.  This prompted the Applicants/Sub-tenants to move this Tribunal in this case and obtained orders on 6th June 2016 directing the Respondent and the interested party to reopen the premises.

15. Using the said orders, the Applicant/Sub-tenants continued to occupy the suit premises without paying rent to the interested party  and without the interested party’s permission.

16. He confirms that since expiry of the said lease, the interested party has not received any payments in relation to the occupation of the premises.

17. It is therefore clear from the foregoing affidavits that the Applicants and the Respondent have continued to occupy the suit premises courtesy of the Tribunal orders of 6th June 2016 and 7th March 2019.

18. All the parties herein agree that occupation of the Applicants and the Respondent in respect of the suit premises is not backed by any lease agreement or payment of the reserved rent to the interested party.

19. The Respondent prays for six (6) months while the Applicants pray for sufficient time to seek alternative accommodation for their businesses.

20. In the premises, the orders that commend to me under section 12(1) (e ) of Cap. 301, Laws of Kenya are the following:-

a. The Applicants and the Respondent shall deliver vacant possession of the suit premises namely L.R NO. 209/600, Contrast House, Moi Avenue on or before 31st December 2021.

b. In default of yielding possession, the Applicants and the Respondent shall be forcibly evicted by a licensed Auctioneer who shall be provided with security by the OCS Central Police Station immediately after 31st December 2021 at their own costs.

c. The interested party shall be at liberty to claim for mesne profits against the Respondent for the period it occupied the premises without paying any consideration through normal court proceedings.

d. The Respondent shall meet the costs of the interested party in respect of the instant proceedings which shall be taxed in the normal matter.

e. The Applicants shall not be entitled to any costs in this matter in view of their illegal occupation of the suit premises.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 5TH DAY OF NOVEMBER, 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Nyamwaya for the interested party.