[2021] KEBPRT 62 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 02 OF 2021 (NAKURU)

BENEDETTA PETER MWENDE................................................TENANT/APPLICANT

VERSUS

DOUGLAS KAMAU............................................................LANDLORD/RESPONDENT

MIMWA CO. AGENCY..............................................................................RESPONDENT

RULING

1. The Tenant’s application dated 7th January 2021 seeks injunctive orders against the Respondents restraining them from interfering with the peaceful occupation of the Applicant’s tenancy pending the hearing of the suit inter partes. The application also seeks an order that the 2nd Respondent be restrained from instructing auctioneers to attach the Applicant’s assets illegally. The Tenant has also sought police assistance in enforcing the orders she has sought.

2. The application is supported by the affidavit of Benedeta Peter Mwende, the Tenant and which I summarize as follows;

a. That the Applicant/Tenant was paying rent at the rate of Kshs 18,000/- per month but with effect from April 2020, the Tenant has been paying Kshs 14,000/- per month.

b. That before the rent was reduced to Kshs 14,000/-, the Tenant was operating a bar, restaurant and butchery.

c. That the rent for the butchery was Kshs 4,000/-.

d. That by its letter of 5th January 2021, the 2nd Respondent on the instructions of the 1st Defendant demanded Kshs 134,200/- in rent arrears which the Tenant/Applicant denies owing.

e. That after the closure of business in April 2020, the Applicant requested the 1st Respondent to let the butchery to another Tenant and the Tenant/Applicant retained the bar and the restaurant.

3. The application is opposed. The 1st Respondent/Landlord has filed an affidavit sworn on 14th January 2021 which I summarize as follows:

a. That the 1st Respondent entered into a lease agreement with the Tenant in 2015 wherein the Tenant was paying rent of Kshs 6,000/- per month.

b. That clause 7 of the lease agreement provided for rental increase after every two years.

c. That the rent has been increased from time to time and the current rent is Kshs 20,600/-.

d. That the Applicant/Tenant has always operated a bar, butchery and restaurant on the premises and has never informed the Landlord that he is not using any part of the premises.

e. That the Tenant has been paying Kshs 10,600/- per month from March 2020 accumulating rent arrears amounting to Kshs 134,200/- as at January 2021.

f. That the Tenant decided to pay half rent on her own without the consent or the authority of the Respondent.

4. The Landlord’s/Respondent’s application dated 14th January 2021 seeks that the orders issued on 8th January 2021 be reviewed and the Tenant be ordered to continue paying the rent at a rate of Kshs 20,600/- per month for the demised premises. The application also seeks that the Tenant be ordered to pay the Landlord Kshs 134,208/- being the outstanding rent arrears since March 2020 up to January 2021 failing which eviction should issue.

5. I have noted that both prayers in the Landlord’s application have been made “pending the hearing and determination of the application inter partes” and can therefore strictly not survive the inter partes hearing of this application which has already taken place.

6. Be that as it may, the application by the Landlord is supported by the affidavit of Douglas Kamau sworn on 14th January 2021.

7. The affidavit is a replication of the replying affidavit by the Landlord which I have already summarized in the foregoing paragraphs and therefore I need not repeat the same all over again. I have noted the contents though.

8. The Landlord’s application is opposed. The Tenant has sworn a replying affidavit whose contents I summarize as follows hereunder;

a. That clause 7 of the tenancy agreement is not clear as to the rate at which the rent would be increased.

b. That the rent payable has been reviewed verbally up to Kshs 18,000/- per month.

c. That the Tenant owns a bar and restaurant in the demised premises which has been greatly affected by the effects of covid 19.

d. That the Tenant in April 2020 informed the Landlord of his intention to surrender the butchery but the Landlord refused.

e. That the Tenant continued paying rent at the rate of Kshs 10,000/- instead of Kshs 18,000/-. The Tenant had the blessings of the Landlord to pay the sum of Kshs 10,000/- from May 2020 until his business improved.

f. That from May to December 2020, the Tenant paid Kshs 10,000/- per month and from January 2021 to June 2021 the Tenant has been paying Kshs 14,000/- per month. The balance or arrears of rent is therefore Kshs 88,000/- and not Kshs 134,200/- as demanded by the Landlord.

g. That the Tenant is willing to settle the arrears of Kshs 88,000/- in reasonable terms and period bearing in mind that the butchery is still non-operational.

9. Both parties have filed their written submissions.

10. According to the Tenant, the Landlord is not entitled to increase rent without first giving the notice required under section 4 of Cap 301. The Tenant is further of the view that the letter dated 5th January 2021 from the 2nd Respondent did not act as a notice but a demand letter for rent arrears.

11. On the part of the Landlord, if the rent applicable was Kshs 20,600/-, the current rent arrears would be Kshs 155,800/- accumulated from March 2010 to August 2021.

12. Alternatively, if the rent applicable was Kshs 18,000/- as admitted by the Tenant, the current rent arrears would be Kshs 112,000/- being the arrears accumulated from March 2020 to August 2021. The Landlord is of the further view that the Tenant has not established a prima facie case to warrant the issuance of an order of injunction.

13. In my humble view, the issues that arise for determination in both applications are the following;

a. What is the applicable monthly rent over the suit premises?

b. Whether the Tenant is in rent arrears and if so, how much?

c. Whether the Tenant is entitled to the orders sought in his application dated 7th January 2021?

d. Whether the Respondent is entitled to the orders sought in his application dated 14th January 2021.

14. On issue (a);

a. The “rental agreement” between the parties dated 14th February 2015 has the following relevant clauses;

1: The Tenant shall pay rent to Douglas Kamau in advance on or before the 5th of every month, Kshs 6,000/- (six thousand only).

7: The rent may be increased after two years period with effect from February 2015.

b. It is true as stated by the Tenant that clause 7 above did not state the rate at which the rent would be escalated. The lease/tenancy agreement does not provide a formular on the basis of which rent increase would be calculated. The clause is rather permissive and does not seem to place a mandatory requirement that the rent would be increased.

c. I am now faced with two scenarios where the Tenant admits to the agreed increased rent to be Kshs 18,000/- and the Landlord only admits to the increased rent of Kshs 20,600/-. I must state that both figures are not based on my agreement and both parties have not provided any evidence on how each one of them arrives at their preferred figures.

d. I will adopt the figure preferred by the Tenant only for the reason that I hold the Tenant to be the disadvantaged party in a negotiation for rent increament. I therefore hold that the rent payable for the premises isKshs 18,000/-per month fromMarch 2020which seems to be the time the cause of action in this dispute arose.

e. I have noted that the Tenant has indicated that he surrendered part of the demised premises, that is the butchery, a fact denied by the Landlord who insists that the Tenant is still holding the entire demised premises. I have not seen the partitioning of the suit premises in the agreement between the parties, the Tenant leased the premises as a whole and in any case, I have not seen any evidence of the purported surrender of the portion that houses the butchery. The rent payable for the undivided business unit therefore remainsKshs 18,000/-per month.

15. On issue (b)

a. The Tenant has stated that fromMay 2020toDecember 2020,she paid rent ofKshs 10,000/-per month and fromJanuary 2021toJune 2021,she paid Kshs 14,000/- per month.

b. The rent arrears for the year2020(May to December) is thereforeKshs 8,000 x 8 (64,000/-)and the arrears fromJanuary 2021toJune 2021is thereforeKshs 4,000 x 6 (74,000/-)making a total ofKshs 88,000/-as atJune 2021. The Tenant acknowledges the running outstanding balance of rent payable under paragraph 11 of her affidavit sworn on23rd June 2021where she states;

“That from May 2020, the Landlord gave me a leeway of paying Kshs 10,000/- until the business were back to their feet but also bearing in mind that out of that, the balance of Kshs 8,000/- per month was still outstanding.”

c. On this issue, I therefore do find that the Tenant is in arrears of rent in the sum ofKshs 88,000/-as atJune 2021.

16. On Issues (c) and (d)

a. The Tenant sought restraining orders against the Landlord on the basis that she denies owing the Landlord rent arrears in the sum ofKshs 134,200/-.I have found that the Tenant owes the Landlord rent arrears amounting toKshs 88,000/-as atJune 2021. The Tenant also admits this figure but only seeks to pay the same in reasonable terms. This prayer for payment in reasonable terms does not form part of the Tenant’s application and therefore the Landlord did not respond to the same.

b. The Tenant being in rent arrears cannot seek equitable relief from the Tribunal and his application for injunction is not merited. The Tenant/Applicant cannot also prevent the Landlord from recovering rent arrears which is a right conferred upon the Landlord bysection 3 of Cap 293which is in the following terms;

3(1) “Subject to the provisions of this Act and any other written laws, any person having any rent or rent service in arrears and due upon a grant, lease demise or contract shall have the same remedy by distress for the recovery of that rent or rent service as is given by the Common Law of England in a similar case.”

17. The Tenant’s application dated7th January 2021is therefore not merited and the same is dismissed. I am of the view that the determination herein conclusively deals with the issues raised by the Landlord’s application dated14th January 2021.

18. But as I had earlier observed, the Landlord only sought orders pending the hearing and determination of his applicationinter partes. Those prayers have in the circumstances been overtaken by events.

19. The Landlord shall have the costs of the application dated7th January 2021.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. MAY THIS 10TH DAY OF DECEMBER, 2021 IN THE PRESENCE OF MWENGU HOLDING BRIEF FOR MOENGA FOR THE LANDLORD/RESPONDENT AND IN THE ABSENCE OF THE TENANT.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL