Shazeen Aslam v Elizabeth N. Mungai [2019] KEBPRT 5 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. 27, 28 & 29 OF 2018 (NAIROBI)

SHAZEEN ASLAM......................................................APPLICANT/TENANT

VERSUS

ELIZABETH N. MUNGAI................................RESPONDENT/LANDLADY

JUDGEMENT

The Landlord (Elizabeth W. Mungai) in the above reference served the Tenant with notices to increase rent as hereunder;

1.   Tenant in BPRT 27/2018 to shs 23,750/-.

2.   Tenant in BPRT 28/2018 to shs 33,625/-.

3.   Tenant in BPRT 29/2018 to shs 23,750/-.

The Tenants did not wish to comply with the Landlord’s notices and filed the reference in the Tribunal.  The parties have filed their respective valuation reports and the mandate of the Tribunal now is to evaluate reports and make an appropriate determination of the reference in respect of the open market rent.  The Tribunal also inspected the premises and confirmed that the suit premises are kiosks opposite the Nyayo Stadium.

Summary of the Landlord’s Valuation Report

The Landlord’s valuation report has been prepared by Acumen Valuers Ltd.  The report is dated 1st December 2017.  The Landlord’s valuer also prepared a supplementary valuation report dated 11th January 2019 which sets out the lettable area in respect of comparables and the current rent payable by the Tenants which information was not captured in the initial valuation report.

The Landlord’s valuation report at page 4 states that:

“The subject of the rental assessment is a single story commercial Block of shops”.

The description is not supported by what the Tribunal found on the ground.  The suit premises are kiosks on the Road Reserve.  The Landlord valuation report has 4 comparables and recommends a monthly rate of shs 125 per square foot.

Summary of the Tenant’s Valuation Report

The Tenant’s valuation report has been prepared by Dantu Valuers Ltd.  The report is dated 19th April 2018.  The report has 3 comparables and recommends the rate of shs 90/-per square ft per month.

Evaluation of the Reports

The Tribunal upon consideration of both reports and in particular the comparables and upon inspection of the suit premises, the Tribunal makes the following findings;

1.   The Landlord’s valuation comparables were not identifiable from the immediate neighborhood of the suit premises.

2.   The Tenant’s valuation comparables and in particular comparable No. 3 was adjacent to the suit premises.

3.   The Tribunal is satisfied that the open market rate cannot be less than 95/- per square foot as per comparable No. 3 which is most suitable.

The Tribunal adopts the rate of 95/- per square foot and access the rent payable by the Tenant as follows;

1. Tenant in BPRT 27/2018 Silla Hatta trading as Ata Umu lettable area 190 square feet x Kshs 95/- = 18,050/-.

2. Tenant in BPRT 28/2018 Shazeen Aslam T/A Shazin Lettable area is 269 square feet x 95 = 25,555/-.

3. Tenant in BPRT 29/2018Ibrahim Aliga trading as Brima lettable area 190 square feet x 95 = shs 18,050/-.

The Tribunal makes the following determination of the reference;

Orders

1.   The rent payable by the Tenant in BPRT 27/2018 is assessed at shs 18,050 exclusive of VAT, if payable, with effect from1st March 2018.

2.   The rent payable by the Tenant in BPRT 28/2018 is assessed at shs 25,555/- exclusive of VAT (ie payable) with effect from 1st March 2018.

3.   The rent payable by the Tenant in BPRT 29/2018 is assessed at shs 18,050 exclusive of VAT (if payable) with effect from 1st March 2018.

4.   The Tenants shall pay the arrears of rent arising out of the judgment within 6 months from the date hereof.

5.   Each party shall bear its own costs of the reference.

Judgement delivered this 5th day of July 2019 in presence of the Tenant, and the Agent for the Landlord (Musa Otieno present).

MBICHI MBOROKI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL