[2024] KEBPRT 287 (KLR)
The tribunal found that the landlord and tenant relationship was admitted by both parties. The landlord's claim for rent arrears was not disputed by the tenant, who failed to provide any evidence of payment or substantiate his opposition. The tribunal held that, in the absence of evidence from the tenant, the...
Source-derived case information.
- Citation
- [2024] KEBPRT 287 (KLR)
- Parties
- Applicant: Bingwa Sacco Limited; Respondent: D G Ngari
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E030 of 2023
- Procedural Posture
- Tribunal Reference / Ruling on Application for Rent Arrears and Vacant Possession
- Outcome
- application allowed in part
- Judges
- M Makori
- Legal Topics
- Landlord Tenant Disputes, Rent Arrears, Vacant Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bingwa Sacco Limited
Applicant
D G Ngari
Respondent
Procedural Posture
Tribunal Reference / Ruling on Application for Rent Arrears and Vacant Possession
Legal Issues
- 1 Whether the landlord is entitled to rent arrears claimed against the tenant.
- 2 Whether the landlord is entitled to vacant possession of the premises.
- 3 Whether the tenant has substantiated any defence to the landlord's claim.
Ratio Decidendi
The tribunal found that the landlord and tenant relationship was admitted by both parties. The landlord's claim for rent arrears was not disputed by the tenant, who failed to provide any evidence of payment or substantiate his opposition. The tribunal held that, in the absence of evidence from the tenant, the landlord's claim remained uncontroverted. However, the tribunal limited the award to the specific amount claimed in the application, as the landlord did not provide evidence of the periodic rent agreed upon. The tribunal therefore allowed the landlord's application for the specific arrears claimed and for vacant possession, but declined to make further orders regarding unspecified...
Court Disposition
application allowed in part
Orders
- The landlord is entitled to rent arrears amounting to KES 136,134.29 as at July 2023.
- The landlord's application dated 8th July 2023 is allowed in terms of prayers 2 and 3 (payment of arrears and vacant possession).
Full Case Text
Judgment text and source record
30 paragraphs
Bingwa Sacco Limited v Ngari (Tribunal Case E030 of 2023) [2024] KEBPRT 287 (KLR) (Civ) (16 February 2024) (Ruling)
Neutral citation: [2024] KEBPRT 287 (KLR)
Republic of Kenya
In the Business Premises Rent Tribunal
Civil
Tribunal Case E030 of 2023
M Makori, Member
February 16, 2024
Between
Bingwa Sacco Limited
Landlord
and
D G Ngari
Tenant
Ruling
1. The present claim was filed vide a Reference dated 26th July 2023 and an application dated 8th July 2023 under Bingwa Sacco Limited and supported by the supporting affidavit of Jeff Muchai Mwaniki and which application was opposed vide grounds of opposition dated 22nd August 2023 by the firm of Gitonga DN Advocates.
2. The Tenant’s notice of motion dated 26th July 2023 seeks the following orders;a.That the application be certified urgent and be heard ex-parte in the first instance.b.That the Respondent/Tenant be ordered to pay arrears of rent amounting to Ksh 136,134. 29/= plus cost and give vacant possession of the premisesc.That OCS Kerugoya police station.d.That cost of this application be provided for.
3. Parties herein through their pleading confirm that there is indeed a Landlord-Tenant Relationship where the Tenant has been staying on the suit property subject to the payment of rent.
4. The issues that arises for determination from the above summary of the respective parties’ is in my humble view, the following;
(a) Whether the Applicant/Tenant is entitled to the prayers sought in its application. 5. The landlord/applicant has made a claim of unpaid rent arrears the said rent arrears is not disputed.
6. On the contrary the Tenant/respondent disputes that the application is an abrogation of his constitutional rights and that the landlord has in several occasions increased rent without any logical and probable reason.
7. I note that despite the tenant/respondent filling the said grounds of opposition he raises new issues to the application that have not been substantiated and proof of the said statements has not been attached.
8. However, this tribunal is bound to evaluate the evidence and allegations made and the fact that the tenant/respondent has not sufficiently addressed his response to the claim made does not in way lessens the burden on the landlord/applicant to prove their case.
9. I make reference to the case of; Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR the court stated:“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence in unchallenged or not.
10. In evaluating the evidence by the landlord despite not providing the necessary prove to establish that there indeed exists a Tenant-landlord relationship the tenant/respondent has confirmed the existence of such a relationship under his grounds of opposition.
11. On the other hand, the landlord/applicant makes claim of existence of a debt owed. This can only be denied by the tenant/respondent if proof of payment has been made.
12. On this basis, in absence of evidence from the tenant/respondent the claim remains uncontroverted and as such this tribunal is inclined to issue orders to the landlord/applicant.
13. However, the tribunal notes that the reference and the application fails short of establishing the exact periodic rental payments as agreed upon by parties and as such it would be utterly impossible for this tribunal to issue orders as to any amount of rent due from the date of filling of this application apart from what has been specifically mentioned in the application
What are the appropriate orders to grant in the circumstances of this case? 14. The upshot is that the applications and reference is allowed on the following terms: -i.That the Landlord is entitled to the rent arrears amounting to Kenya shillings one hundred and thirty-six one hundred and thirty-four and twenty-nine shillings (136,134. 29) claimed as at July 2023. ii.The landlord’s application dated 8th July 2023 is allowed in terms of prayers 2 and 3iii.Each party shall bear their own costs
RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF FEBRUARY, 2024. HON. MIKE MAKORI - MEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the absence of the parties