Wamaye Hiuju v Superdrug Pharmacy Limited [2019] KEBPRT 12 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. 93 OF 2018 (NAIROBI)

WAMAYE HIUJU….………………………………….……………..……………….TENANT

VERSUS

SUPERDRUG PHARMACY LIMITED……………….…….………………….…LANDLORD

RULING

The Tenant/Applicant on 31st January 2018 filed a complaint under section 12(4) of Cap 301 and also a notice of motion under a certificate of urgency seeking interim restraining orders against the Landlord.  The substance of the complaint was that the Landlord was seeking to evict the Tenant without complying with section 4(2) of Cap 301.  That the Landlord had also instructed auctioneers to levy distress when no rent was due and payable or when the same was disputed.  The Tribunal issued ex-parte orders on 31st January 2018.

The advocate for the Landlord on 5th February 2018 filed a notice of motion under a certificate of urgency seeking to set aside and/or discharge the order of the Tribunal issued on 31st January 2018.  The application is opposed by the Tenant.  The advocates of both parties have filed written submissions which the Tribunal has read in details.  There are only 2 issues raised by the Tenant.

1. Termination of tenancy.

2. The levying of distress.

Termination of Tenancy

The parties seem to be in agreement that the tenancy between the parties is controlled within the meaning of section 2 of Cap 301.  The tenancy cannot be terminated without compliance with section 4(2) of Cap 301.  In this regard, the Landlord’s letter dated 28th December 2017, Tenant’s exhibit WH3 does not comply with the provisions of section 4(2) of Cap 301.

The Landlord’s notice dated 28th December 2017 is incurably defective and the Tenant had a right to challenge the same in the Tribunal.

Distress

A Landlord has a common law right and a statutory right to levy distress under section 3 of the Distress for Rent Act (Cap 293).  There may be a dispute in the monthly rent but it is clear from the proceedings that the Tenant has arrears of rent.  The Tenant admitted arrears of rent for December 2017 and January 2018 and alleged that the Landlord had requested to collect the same.

In the light of the above facts, the Tribunal makes the following orders in respect of the Tenant’s application dated 31st January 2018 and the Landlord’s notice dated 5th February 2018.

Order:

1. The Landlord’s notice dated 28th December 2017 is incurably defective and contrary to section 4(2) of Cap 301 and the Landlord is hereby restrained from evicting the Tenant from the suit premises in terms of prayer of the notice of motion dated 31st January 2018.

2. Prayer 2 of the orders issued on 31st January 2018 is varied in the following manner;

a. The Landlord is at liberty to levy distress and recover all outstanding arrears of rent under the Distress Rent Act (Cap 293).

b. The Landlord is also at liberty to seek leave of the Tribunal to levy distress by filing an appropriate application.

c. Each party shall bear its own costs in the circumstances of this case.

Ruling delivered this 20th day of September 2019 in the presence of Ndungu for the Landlord.  Tenant’s advocate absent.

MBICHI MBOROKI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL