Case ID:165133

James Njoroge Njuguna t/a J.N. Njuguna & Co Advocates National Bank of Kenya Ltd & another [2020] eKLR

Case Metadata

Case Number:

Tribunal Case 83 of 2019 Nairobi

Parties:

James Njoroge Njuguna t/a J.N. Njuguna & Co Advocates National Bank of Kenya Ltd & Sedco Consultants Limited

Date Delivered:

21 Feb 2020

Case Class:

Civil

Court:

Business Premises Rent Tribunal

Case Action:

Ruling

Judge(s):

Mbichi Mboroki - Chairman Business Premises Rent Tribunal

Citation:

James Njoroge Njuguna t/a J.N. Njuguna & Co Advocates National Bank of Kenya Ltd & another [2020] eKLR

Advocates:

Kiprop holding brief for Githaiga for the Respondent

Mugambi for the Tenant/Applicant

Court Division:

Tribunal

County:

Nairobi

Advocates:

Kiprop holding brief for Githaiga for the Respondent

Mugambi for the Tenant/Applicant

History Advocates:

Both Parties Represented

Case Outcome:

Parties to fix the reference for hearing at Kisumu, Kakamega or Nairobi within the said 90 days

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 83 OF 2019 NAIROBI

JAMES NJOROGE NJUGUNA T/A

J.N. NJUGUNA & CO ADVOCATES....................TENANT/APPLICANT

VERSUS

NATIONAL BANK OF KENYA LTD....LANDLORD/1

ST

RESPONDENT

SEDCO CONSULTANTS LIMITED...........AGENTS/2

ND

RESPONDENT

RULING

The applicant/Tenant on

11

th

September 2019

filed a reference under

section 12 (4)

of Cap 301

against the Respondent in the above reference. The Tenant/Applicant on the same date also filed a notice of motion under a certificate of urgency seeking to restrain the Landlord and his agents and in particular Desire Recovery Auctioneers from proceeding to levy distress and recover outstanding arrears of rent and service charge pursuant to their proclamation dated

7

th

September 2019

. The amount which was sought to be recovered as per the aforesaid proclamation is

shs 1,111,980

.

The Tribunal upon hearing the advocate for the Tenant/Applicant and upon perusal of all the pleadings in this matter issued interim orders on

12

th

September 2019

which orders are still in force.

The first Respondent/Landlord in this matter on

7

th

October 2019

filed a comprehensive replying affidavit in this matter sworn by Albin Sigei. The Tenant/Applicant filed a supplementary affidavit on

29

th

October 2019.

The advocates of the parties have filed written submissions together with a list of authorities. The Tribunal upon consideration of the written submissions and all the authorities attached in the submissions and upon consideration of all the pleadings in this matter makes the following findings;

1. The core dispute in this reference is in respect of arrears of rent and service charge.

2. The Tenant has denied that he is in arrears of rent or service charge.

3.

A Landlord has a statutory and a common law right to levy distress and recover arrears of rent and rent service in accordance with the provisions of

section 3 of the Distress for Rent Act (Cap 293).

4. The

Distress for Rent Act Cap 209

is also applicable to controlled tenancies and it is not mandatory for a landlord in a controlled tenancy to seek leave of the Tribunal. The law is now settled on this issue.

5. The Tribunal is satisfied on the pleadings that the tenancy between the Tenant and the Landlord herein is a controlled tenancy within the meaning of

section 2 of Cap 301.

The Landlord has not exhibited a current lease which has been executed by the Tenant for a period exceeding

5 years

since expiry of the lease which was executed by the parties.

6. The parties have had other cases before the Tribunal on the issue of rent and service charge which have not been resolved.

7. The Tribunal is satisfied that to recover the dispute between the Tenant and the Landlord in this matter once and for all there is need to take oral evidence between the parties.

The Tribunal in the light of the above findings is satisfied that the Tenant has established a prima facie case with a probability of success and the Tribunal makes the following orders;

1. The Tenant’s application dated

11

th

September 2019

is allowed in terms of

prayers 2 and 3

of the notice of motion.

2.

The costs of the application shall abide the outcome of the reference dated

11

th

September 2019.

3. The Tenant/Applicant shall continue to pay the undisputed rent pending the hearing and determination of the reference.

4. The reference dated

11

th

September 2019

shall be heard and be determined by the Tribunal within

90

days from the date hereof by way of oral evidence.

5. The interim orders issued in this matter shall only remain in force for

90

days.

6. The parties shall fix the reference for hearing at Kisumu, Kakamega or Nairobi within the said

90

days.

Ruling

dated and delivered this

21

st

day of

February 2020

in the presence of

Kiprop

holding brief for

Githaiga

for the

Respondent

,

Mugambi

for the

Tenant/Applicant.

Further Orders by Consent of the Parties:

1. The reference shall be heard on

16

th

March 2020 at Kisumu.

MBICHI MBOROKI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL