[2021] KEBPRT 52 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 24 OF 2021 (NYERI)

ANN NJERI MUTONGA......................................................TENANT/APPLICANT

VERSUS

JAMES WAIYA KIHUMBURU................................ LANDLORD/RESPONDENT

RULING

1. Through a motion dated 27/5/2021, the tenant is seeking in material part for orders that she be allowed to undertake floor repairs of the and portion demolished by the Respondent/Landlord and the cost thereof be deducted from the rent upon production of receipts.

2. She further seeks for an order that the landlord do desist forthwith from interfering in any way with her water intake and electricity to avert further financial loss occasioned by the latter’s actions.

3. Finally, the tenant seeks for an order that the landlord desist from interference with her quiet enjoyment and possession of the premises and the OCS, Nyeri Police Station to oversee the exercise.

4. The application is supported by the tenant’s affidavit of even date and the grounds on the face thereof.

5. The main complaint by the tenant is that following this court’s judgment delivered on 19th March 2021, the landlord went to the demised premises on 21st May 2021 with hired men with an intention to demolish the same in the guise of undertaking the repairs authorized by the Tribunal.

6. As a result, the matter was reported to the police and the landlord was stopped from undertaking the demolition. However, the landlord failed to repair the portion already demolished thereby exposing the tenant to the risk of vandals.

7. It is the tenant’s case that the landlord has from time to time declined her rightful access to electricity and clean water despite demand by the tenant.

8. The landlord is also accused of failing to undertake the repairs ordered by this Tribunal in respect of the floor and instead is hellbent to evict the tenant.

9. The landlord is further accused of denial of water to the tenant as well as harassment of her customers occasioning loss of business and mental anguish.

10. The tenant wishes to undertake the floor repairs at the cost of the landlord who has failed to do so.

11. The application is opposed through a replying affidavit of the landlord sworn on 21st June 2021 wherein it is deposed that the tenant is seeking sympathy of the court to ensure that the order for repairs is circumvented or reviewed.

12. The landlord states that the tenant intends to ensure that the premises remain in a state of dilapidation and inflate the costs so as to continue using the premises without paying rent.

13. Before commencing the repairs, the landlord issued notice to the tenant marked ‘JW1’ and sent workers on 26/5/2021 to commence the repairs but the tenant involved police who arrested him for causing annoyance to a tenant. He was however released after showing the Tribunal order to the police without any charges.

14. According to the landlord, electricity supply was disconnected by the service provider on the grounds that the meter was not in the name of the occupant. This exercise affected other premises with similar meters. The disconnection affected his own bar and restaurant business. He therefore denies interfering with the electricity supply.

15. I am called upon to determine whether to allow or reject the tenant’s application.

16. On 19th March 2021, this Tribunal authorized repairs to be carried out on the suit premises by the landlord. The intended repairs were to be done on the floor of the premises. No other repairs were alluded to during the hearing.

17. I have looked at the photographs annexed to the application by the tenant which clearly show that the landlord was using the order authorizing repairs to demolish the suit premises. This is certainly intended to evict the tenant and defeat the court judgment. This is confirmed by the tenant’s further affidavit sworn on 8th July 2021.

18. I have looked at both parties submissions and the same repeat the contents of the affidavits filed herein. I shall therefore assume that the same is covered by the above analysis of evidence.

19. The short title to Cap. 301 clearly shows the reason for its enactment to wit:-

“ An act of Parliament to make provision with respect to certain premises for the protection of tenant of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto”.

20. During the hearing of this case, it was clear that the intended repairs only affected the floor. The landlord was not therefore entitled to go beyond what was presented by demolishing the kitchen of the suit premises and the walls since this would lead to eviction of the tenant. This is no doubt go against the spirit of the court’s judgment.

21. In the premises I find that the tenant has been able to demonstrate lack of good faith on the part of landlord and will allow her application in its entirety.

22. In view of the foregoing, the following orders commend to me:-

(a) The application is allowed in terms of prayers (d), (f) and (g) thereof.

(b) Costs of the application assessed at Kshs.7500/- awarded to the tenant to be defrayed against the rent account.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF DECEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Kiminda for the Landlord

Nyakio for the Tenant