Umoja Service Station Ltd v Gilbert P O Galana t/a Aafrowide Cbo Health Care [2022] KEBPRT 82 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 30  OF 2020 (NYERI)

UMOJA SERVICE STATION LTD.......................................................................LANDLORD

VERSUS

GILBERT P.O. GALANA T/A AAFROWIDE CBO HEALTH CARE..................TENANT

RULING

1.  The landlord moved this Tribunal through a motion dated 3rd March 2021 seeking leave to levy distress against the tenant for recovery of rent arrears of Kshs.5,790,736. 29 and costs incurred thereon.  The landlord is also seeking for costs of the application.

2.  The application is supported by the affidavit of David N. Muthoga sworn on even date and the grounds on the face thereof.

3.  The landlord owns the premises on L.R NO. Nyeri Municipality block II/29 with the Respondent as its tenant in rooms 12, 13 and 14 paying a monthly rent of Kshs.70,000/-.

4.  It is deposed that the tenant is troublesome in payment of rent and had accumulated arrears of Kshs.5,790,736. 29 which was still growing.

5.  As rent is deposited into the landlord’s bank account, the tenant presented fake banking slips with Kshs.1,793,000 marked ‘DNM1’ which amounts were not reflected on the landlord’s bank statements.

6.  Despite demand made, the tenant has failed to pay the said arrears and continues to occupy the premises to the detriment of the landlord.

7.  Copies of correspondence marked ‘DNM2’ are annexed to the affidavit as evidence to demonstrate that the tenant was a habitual defaulter.

8.  The tenant filed a replying affidavit sworn on 1st  October 2021 wherein it is alleged that the arrears claimed were largely occasioned by the landlord.

9.  The tenant deposes that the “fake bank deposit slips” were subject matter of Nyeri CMC Criminal cases nos. 1269 and 1270 of 2020 by the time of swearing his affidavit.

10. As such, the tenant contends that the order sought will offend the subjudice rule and that the application is an abuse of court process.

11. The tenant complains that the landlord had put him in “a predicament’’ and cannot “seek to have their cake and eat it” after blocking him from conducting his business pursuant to constant interference and intrusion.

12. The tenant further deposes that the instant application is evidence that the landlord have been constructively conspiring to have him completely evicted from the suit premises using courts and mostly through  unorthodox methods.

13. The tenant contends that distress should be the last option if he was to lose the cases genuinely and if found guilty in the criminal charges.

14. The matter was ordered to be canvassed by way of written submissions and both parties complied.

15. The issues for determination in this matter are:-

(a) Whether the landlord is entitled to the orders sought?

(b) Who is liable to pay costs?

16. The tenant has not denied owing rent to the landlord. He has not shown evidence of payment of rent and the landlord submits that there is no evidence to show that it was unconscionable for it to levy distress.

17. It is submitted that the criminal case was filed long after the tenant had filed Nyeri BPRT No. 23 of 2020 and that he cannot be heard to say that he was unable to tender evidence owing to the criminal case.

18. According to the tenant in his submissions, the landlord had created a situation that is hostile to him and was seeking this court’s blessings to aggravate the circumstances further.

19. The tenant submits that the landlord caused him to be arrested on allegations of giving fake banking slips which charges were yet to be proven.

20. A lot of issues raised in the tenant’s submissions are matters of evidence which are not pleaded in filed documents including allegations that he was in remand, his water and electricity had been disconnected by the landlord and that his business was not running.  He alleges that the amount in arrears is unknown despite the amount being quoted in the application and rent statement being annexed as ‘DNM3’.

21. I have looked at pleadings by both parties and I have no doubt in my mind that the tenant owes rent arrears to the landlord.

22. Even if the amount of Kshs.1,793,000/- subject matter of the criminal case was to be disregarded, the tenant would still be in rent arrears based on the material presented by the landlord.

23. Section 3(1) of the Distress for Rent Act, Cap. 293, Laws of Kenya stipulates as follows:-

“subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrears and upon a grant, lease, demise or contract shall have the same remedy by distress for the recovery of that rent or rent service as is given by the Common Law of England in a similar case”.

24. Section 12(1) (h) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap. 301, Laws of Kenya gives this Tribunal power “to permit the levy of distress”

25. In the premises, the final orders that commend to me are:-

(i)   The landlord’s application dated 3rd March 2022 is hereby allowed as prayed.

(ii)   The tenant shall pay costs of Kshs.20,000/- to the landlord.

(iii)   The requirement for payment of distress fees by the landlord is hereby waived given the collosal amount of rent outstanding.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF FEBRUARY 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

IN THE PRESENCE OF:-

MISS SIMIYU FOR THE TENANT/RESPONDENT

MR. MUCHIRI FOR THE LANDLORD/APPLICANT