[2021] KEBPRT 301 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E178 OF 2021 (NAIROBI)

ALICE WANJIKU MATU.....................................................TENANT/APPLICANT

VERSUS

NAOMI WAITHIRA KARURI....................................LANDLORD/RESPONDENT

RULING

1. By a motion dated 11th June 2021, the tenant moved this Tribunal seeking Ten (10) reliefs. Prayers 1, 2 & 5 were granted at the ex-parte stage.

2. Prayer 3 seeks that the landlord/Respondent be restrained from terminating the tenancy, interrupting, intimidating, harassing, closing down, levying distress for rent and evicting or in any other manner whatsoever interfering with the quiet occupation and lawful enjoyment of the Applicant’s tenancy on L.R. No. 7418/117 situated at Ruiru, Kimbo area along Ruiru/Kiganjo pending hearing and determination of the complaint filed herein.

3. The applicant is also seeking to be allowed to deposit future rents in the Tribunal at the cost of the Landlord/Respondent vide prayer 4 of the application.

4. Prayer 6 is seeking that the Landlord/agents do issue rent receipts to the Tenant/Applicant for all the previous payments for rent on the suit premises and render a true and just account for rent received since the commencement of the tenancy herein.

5. Prayer 7 is to the effect that the Landlord be ordered to reconnect electricity and water to the Tenant’s premises forthwith and thereafter be restrained from interfering with the same.

6. Prayer 8 seeks that the Landlord/Respondent be ordered to restore and/or constitute the original access road as it existed at the commencement of the tenancy herein in July 2020.

7. Prayer 9 seeks that the Landlord/Respondent be ordered to provide, install and construct a proper drainage system at the suit premises as it was mutually agreed at the commencement of the tenancy herein.

8. The Tenant finally seeks for costs of the application to be borne by the Respondent.

9. The application is supported by the affidavit of the tenant sworn on 11th June 2021 and the grounds set out on the face of the application.

10. The parties herein entered into a lease agreement dated 15th July 2020 for a space measuring 180ft by 54ft on the Landlord’s property known as L.R NO. 7418/117 at Ruiru situated along Kimbo/Kiganjo road, Kiambu County.

11. The space was bare, barren, marshy and swampy land the tenant was to rehabilitate and/or reclaim the same which the tenant did by heavily excavating and removing the cotton soil and back filling and levelling it again.

12. She thereafter connected the property with high voltage electricity installation and erected a modern mega car wash and a mini shopping complex known as “Royal Spa Car wash and Qwetu Nyama Choma & foods”.

13. The developments effected on the suit premises were clearly captured in the lease agreement and the tenant was at liberty to sublease the temporary structures erected thereon. The reserved monthly rent was agreed at Kshs.100,000/- with no extra payments being demanded.

14. A sum of Kshs.400,000/- was paid at the commencement of the lease to the landlord through the account of one Eva Karuri at Cooperative Bank but no receipt was issued in respect thereof.

15. After completing the rehabilitation work and acquisition of subtenants by the tenant, the Respondent and her children started being hostile with persistent harassment of subtenants, disconnecting electricity power and water supply to the suit premises, blocking the access road and finally issuing notices to terminate tenancy with effect from 1st June 2021.

16. According to the tenant, the landlord’s sole intention is to lease the premises at a higher rent than what she was currently paying her. The notice to terminate is marked “AWM-2”.

17. The landlord also engaged an auctioneer to levy distress on the tenant and subtenants despite being aware why the tenant declined to pay rent which is on account of her own breach.

18. The tenant deposes that she used over Kshs.12 million to rehabilitate and reclaim the suit premises which was financed by banks and other creditors in terms of annexure “AWM-4”.

19. As a result of the foregoing, the tenant filed the instant complaint seeking the Tribunal’s protection.

20. The landlord/Respondent filed a replying affidavit sworn on 26th June 2021 opposing the said application on grounds that the tenant has been forum shopping having previously filed Milimani CMCC NO. E8711 of 2021 which was scheduled for hearing of a preliminary objection on 6th July 2021.

21. As such, the Respondent contends that the tenant is not entitled to benefit from the discretionary orders of this Tribunal.

22. The landlord confirms that indeed there exists a lease agreement between her and the tenant in respect of the suit premises and that she received Kshs.400,000/- upon its execution.

23. She also confirms further payments of Kshs.60,000/- through Mpesa at the beginning of April 2021 and deposes that the tenant is in gross breach of the lease agreement for failure to pay rent and curving out more land than what was given to her in the agreement and has in addition put up illegal permanent structures.

24. As a result, the landlord served the tenant with a notice to terminate the tenancy agreement dated 3rd June 2021 which notice is marked NWK-3 but the tenant was yet to file a reference.

25. It is the landlord’s case that the tenant is not entitled to the tribunal’s discretion having defaulted in rent payment and that she had a right to levy distress.

26. She also denies having refused to accept rent from the applicant and opposes the prayer for rent deposit with the Tribunal.

27. The landlord points out that the tenant has given different figures before Milimani court and this tribunal in respect of the cost of developments effected on the suit premises at Kshs.800,000/- and Kshs.12 million respectively.

28. She denies the alleged interference with the quiet enjoyment of the premises as no report has been made to the police.

29. She denies disconnection of water or electricity and further states that she is not in breach of the terms of tenancy.

30. Due to the counter accusations levelled against each other by the two parties herein I ordered for a visit and report by a rent inspector of this Tribunal on the issues at hand.

31. A visit was conducted on 13th August 2021 and the rent inspector filed a report that the carwash on the suit premises was not operational and looked dry for sometime. She was informed that it had not operated since May 2021.

32. Water is drawn from a borehole located at the landlord’s compound which is a 100 metres from the suit premises but the pipings had been interfered with.

33. The landlady is said to have stated that she did not know what happened and it was the responsibility of the tenant to do so and offer security of the water she uses. The tenant had no access to the borehole which was located next to the landlady’s home and that water was suddenly disconnected.

34. According to the tenant, water and electricity were disconnected at the same time. The landlady indicated that she had no problem with the tenant as long as rent is paid.

35. In conclusion, the rent inspector concluded that indeed there was no water at the premises though the tenant’s other business was in operation apart from the carwash at the time of visiting the premises.

36. The application was ordered to proceed by way of written submissions but only the landlord’s advocates filed.

37. I am now required to determine the following issues:-

(a) Whether the orders sought in the application should be granted or denied.

(b) Who is liable to pay costs of the application?

38. In determining issue (a) above, I shall be guided by the principles espoused in the case of Giella – vs- Cassman Brown & co. Ltd (1973) EA 358 as applied and developed by our courts over the years.

39. There is no dispute that the relationship between the tenant and the landlord is a controlled one having begun with execution of a lease agreement dated 15th July 2020.

40. The rent payable in respect of the demised premises is Kshs.100,000/- per month and the agreement stipulates that either party wishing to terminate the tenancy is required to give the other 3 months notice in advance or pay rent due in lieu of notice.

41. The lessee is allowed to expand upwards and put up storey structures such as additional container stalls and other temporary structures within the allowed limit by the County Government of Kiambu Land and planning Laws.

42. The lease agreement further provides that “the lessee has been granted access to the leased portion free from any interference by any third party and/or existing tenant”.

43. Clause 19 of the agreement states that “Electricity and water in the property is to be connected by the lessee at his cost and incidentals but the lessors will execute any documents needed for the connection of the said utilises.

44. The lessor under clause 25 is to ensure “that the lessee enjoys peaceful and quiet enjoyment of the leased portion of the land”.

45. According to the lessee/tenant, she has not enjoyed peace and quiet use of the premises on account of the lessee’s/landlord’s interference with the suit premises.

46. In particular, the lessee/tenant complains that her electricity and water was disconnected by the landlord.

47. After sending the Tribunal’s rent inspector, it was indeed found out that the water pipings serving the suit premises had been interfered with and there was evidence gathered that this had been the case since May 2021 which confirmed the tenant’s complaint.

48. The water borehole serving the suit premises is located within the Respondent’s residence and it is the tenant’s evidence that the interference with water supply started when the landlord demanded for rent payment and the tenant was insisting on her remedying of certain breaches of terms of tenancy.

49. I do not believe that a tenant can interfere with water supply as was alleged by the landlord after the filing of the rent inspector’s report and turn around to complain about it before court.

50. I believe that the water disconnection was done by the landlord with a view to compelling the tenant to pay withheld rent.

51. Although the landlord claims that the tenant is in arrears, the amount in arrears is not clear from the pleadings filed herein.

52. Secondly, the landlord is said to have instructed an auctioneer to distrain for rent against the subtenants although she has no direct relationship with them. This is an act of harassment and intimidation which is unjustifiable under the existing landlord/tenant relationship.

53. Although the landlord disputes the value of the investment made by the tenant in the suit premises, I find that this is not a material consideration for purposes of determination of the application before me.

54. The tenant has complained that the landlord blocked the access way to the premises which has affected her business negatively. No response has been made by the landlord in that regard and I therefore find that the allegation is uncontroverted.

55. In regard to the prayer for future rent to be deposited with the Tribunal, I find that no evidence has been tendered by the tenant to show that the landlord has refused to accept rent and as such the said prayer being unsupported is rejected.

56. As regards the prayer that the landlord constructs a proper drainage system, no response has been made by the landlord and I find that the same remains uncontroverted and is for granting.

57. The tenant has also prayed for an order that the landlord issues her with rent payment receipts for all previous payments and render a true and just account for rent received since the commencement of the tenancy. No response in this regard has been made by the landlord and I find that the said prayer is deserving. This is moreso in view of Section 3(3) of Cap. 301 Laws of Kenya which mandates “a landlord of a controlled tenancy to keep a rent book in the prescribed form of which he shall provide a copy for the tenant and in and in which shall be maintained a record, authenticated in the prescribed manner of the particulars of the parties to the tenancy and the premises comprised therein and the details of all payments of rent and of all repairs carried out to the premises”.

58. On 14th June 2021, this Tribunal issued an injunction order restraining the Landlord/Respondent from terminating the tenancy, interrupting, intimidating, harassing, closing down, levying distress for rent and evicting/or in any manner whatsoever interfering with the tenant’s tenancy on L.R. NO. 7418/117 situated at Ruiru, Kimbo area along Ruiru/Kiganjo pending hearing and determination of this application.

59. It was expected that the water supply to the suit premises would remain uninterrupted with the said order being in place. However, as was reported by the Rent Inspector in her report to the Tribunal, the premises has no water supply and the water pipes have been interfered with.

60. Whereas the landlord denies any interference with the said water supply, I note that the borehole supplying water is next to her homestead and granted the brewing sour relationship between her and the tenant, it is my finding that the said interference was done by her and her agents.

61. On the issue of alleged pendency of Milimani CMCC No. E8711 of 2021, I note that the Landlord’s preliminary objection therein is to the effect that the said court had no jurisdiction as the tenancy was a controlled one and as such it ought to have been filed before this Tribunal. Having objected to the said court’s jurisdiction, I find that the Landlord cannot again object to the instant proceedings on the basis of pendency of the aforesaid proceedings as that would amount to blowing hot and cold.

62. In the premises, I find that the tenant has established the principles for the grant of a temporary injunction pending hearing and determination of the complaint.

63. I therefore proceed to make the following orders in regard to the application dated 11th June 2021:-

(a) Prayers 3,5,6,7,8, & 9 are granted as prayed.

(b) Pending compliance with the said orders and in view of non-compliance with the previous orders of 14th June 2021, I shall suspend payment of rent with effect from the date of the said order until full compliance.

(c) Costs of this application assessed at Kshs.25,000/- are awarded to the tenant.

It is so ordered

DATED, SIGNED & DELIVERED THIS 14TH DAY OF SEPTEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Mrs. Owino for the Landlord.

Mr. Byamkama holding brief for Ngugi for Tenant/Applicant