Case ID:165128

Wamaye Hiuju v Superdrug Pharmacy Limited [2020] eKLR

Case Metadata

Case Number:

Tribunal Case 93 Of 2018

Parties:

Wamaye Hiuju v Superdrug Pharmacy Limited

Date Delivered:

20 Sep 2019

Case Class:

Civil

Court:

Business Premises Rent Tribunal

Case Action:

Ruling

Judge(s):

MBICHI MBOROKI CHAIRMAN

Citation:

Wamaye Hiuju v Superdrug Pharmacy Limited [2020] eKLR

Court Division:

Tribunal

Parties Profile:

Individual/Private Body/Association v Individual/Private Body/Association

County:

Nairobi

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

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

31

st

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

31

st

January 2018.

The advocate for the Landlord on

5

th

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

31

st

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

28

th

December 2017

, Tenant’s exhibit WH3 does not comply with the provisions of

section 4(2) of Cap 301

.

The Landlord’s notice dated

28

th

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

31

st

January 2018

and the Landlord’s notice dated

5

th

February 2018.

Order:

1. The Landlord’s notice dated

28

th

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

31

st

January 2018.

2.

Prayer 2

of the orders issued on

31

st

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

20

th

day of

September 2019

in the presence of

Ndungu

for the

Landlord.

Tenant’s advocate absent.

MBICHI MBOROKI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL