St. Paul Community Medical Center v Family Life Promotions & Services [2021] KEBPRT 367 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 135  OF 2020  (NAIROBI)

ST. PAUL COMMUNITY MEDICAL CENTER....................TENANT/APPLICANT

VERSUS

FAMILY LIFE PROMOTIONS & SERVICES............LANDLORD/RESPONDENT

RULING

1.  By a motion dated 5th February 2021, the Tenant is seeking for restraining orders against the Landlord in respect of business premises known as St. Paul’s community medical Centre pending the hearing and determination of this suit.

2.  The application is supported by the Tenant’s affidavit of even date and annextures thereto.

3.  The grounds for the said application are that the Landlord has issued an eviction notice through its lawyers which was to take effect on 13th February 2021.

4.  The Tenant complains that the said notice is not in the prescribed form under section 4(2) of Cap.301.

5.  The Tenant explains that it relocated from Mlolongo to Kitengela in July 2019 as a result of which its services in respect of NHIF patients was affected until December 2020 when it was reinstated to offer such services.

6.  It further blames covid-19 pandemic as having led to loss of business on account of patients fearing contracting the disease.

7.  The said pandemic is said to have slowed down processing of the Tenant’s pending claims  with NHIF.

8.  It is on the foregoing premises that the Tenant brought the instant application.

9.  The Landlord filed a response through FRANK JAPHET NJAGI  who swore a replying affidavit on 15th March 2021 denying the Tenant’s claim.

10. It is the Landlord’s case that it never served an eviction notice upon the Tenant but a notice to clear arrears of rent in the sum of Kshs.750,000/-.

11. The said notice prevailed upon the Tenant to vacate the premises at their own volition if at all they were not in a position to clear the rent arrears which was outstanding for months.

12. The Tenant did not make any effort to clear the arrears or negotiate a settlement even after being reinstated by NHIF as a service provider.

13. According to the Landlord, hospitals were the “safest of all places’ even after resurgence of covid-19 pandemic.

14. It is the Landlord’s case that the Tenant has not been paying any rent and that no prima facie case has been established.

15. From the foregoing pleadings, the only issue for determination is whether the Tenant has established the principles of granting an injunction.

16. The genesis of the suit is the demand notice dated 13th January 2021 in which the landlord calls upon the Tenant to pay arrears of Kshs.750,000/- within seven (7) days or vacate the premises and handover to them vacant possession on or before 13th February 2021 (see annexture SM 1).

17. I have considered the pleadings and annextures tendered by both parties and make the following findings:-

(i)  The Tenant has not demonstrated payment of rent arrears claimed by the Landlord.

(ii)  The Landlord was entitled to demand for rent from the Tenant in the manner that it did.

(iii)  The demand notice dated 13th January 2021 is not by any stretch of imagination an eviction notice to warrant filing a suit for injunction.

(iv) Had the Tenant been meeting its obligations to pay rent, the Landlord would have had no reason to make such a demand.

(v) The Tenant did not make any arrangement with the  Landlord on how it would clear the rent arrears in instalments in the backdrop of covid-19 pandemic and the financial woes it faced upon relocation to the current site.

(vi)  The Tenant has failed to bring itself within the principles espoused in the case of GIELLA – VS- CASSMAN BROWN & CO. LTD (1973) EA 358 and developed by our courts over the years.

18. In the premises, I proceed to dismiss the Tenant’s application with costs.

19. The orders given on 9th  February 2021 are extended and will stand discharged after expiry of THIRTY (30) days from the date hereof if the Tenant shall not have cleared the rent arrears or made acceptable arrangements with the Landlord for payment thereof.

This order is made pursuant to the principle espoused in the case of Erinford Properties Limited  -vs- Chesire County Council (1974) 2 ALLER 448.

It is so ordered.

DATED, SIGNED & DELIVERED THIS 21ST DAY OF JULY 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Mr. Kivuva for the Landlord

No appearance for the Tenant