Marshalls ordered to return Foton vehicles seized in rent row

December 22, 2011 3:29 pm

, NAIROBI, Kenya Dec 22 – The Business Premises Rent Tribunal has ordered Marshalls (East Africa) Limited to return vehicles seized from Foton East Africa Limited following a protracted tenancy dispute for premises located on on Mombasa Road.

The chairperson of the tribunal Diana Mochache ruled that there was no tenancy relationship between Marshalls and Foton to warrant seizure of the vehicles to settle what Marshalls claimed was outstanding rent amounting to Sh10 million.

“That’s to say that the tribunal’s orders of 12/8/2011 are hereby set aside and Marshalls is hereby ordered to return all restrained goods to Foton,” she ruled.

The vehicles were seized from the disputed premises on Mombasa road in August last year by auctioneers who were accompanied by anti-riot police backed by gun-wielding officers.

The auctioneers broke into the building and roughly towed away trucks and pickups worth tens of millions of shillings.

But the Business Premises Rent Tribunal observed that whereas Marshalls sub-let the premises on Mombasa Road to Foton in September last year, the agreement was terminated when the proper landlord – Davis Motor Corporation – entered into a tripartite agreement with both firms.

“It is my considered view that upon the parties herein entering into a lease with Davis dated 3/12/2010, they effectively by agreement, terminated their own relationship of landlord and tenant and decided to enter into a joint relationship.”

Marshalls which is linked to businessman Kamlesh Pattni had been tenants of Davis Motors Corporation for 20 years but sub-let the premises to Foton in September last year. Foton was to pay Marshalls Sh1.3m in rent.

Foton, which is represented by lawyer Ken Ogeto, paid a deposit of Sh3.9m before moving in and paid a further Sh4.5 million after taking possession of the premises and argues it did not realise that Marshalls was also a tenant on the premises.

When Davis learnt that there was a sub-tenant on the premises it began negotiations to incorporate Foton as a joint tenant as opposed to a sub-tenant of Marshalls.

In December, Davis entered into a tripartite agreement with the two, signing a five-year lease agreement for a rent of Sh1.6m a month. But in January this year, Davis terminated the lease agreement on account of non-payment of rent.

Davis subsequently moved to the High Court seeking vacant possession and eviction of both tenants from the premises but as the case was in progress, the firm executed a lease with Foton backdated to January.

“The landlord Davis therefore argues that upon the termination of the tripartite agreement on 4/1/2011 both Marshalls and Foton ceased to be their tenants.

Foton has subsequently paid rent to the landlord and there’s no tenancy relationship between David and Marshalls… there is no longer a tenancy agreement between Marshalls and Foton that is controlled.”


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