[2024] KEBPRT 82 (KLR)

Board of Management Katharaka Primary School (BOM) v Njeru (Tribunal Case E026 of 2023) [2024] KEBPRT 82 (KLR) (Civ) (2 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 82 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E026 of 2023

Gakuhi Chege, Chair & J Osodo, Member

February 2, 2024

Between

Board of Management Katharaka Primary School (BOM)

Landlord

and

Kenneth Gitonga Njeru

Tenant

Ruling

1. The Landlord moved this tribunal through a motion dated 22nd May 2023 seeking for orders: -(i)That the tenant be ordered and directed by this tribunal to pay the landlord Ksh.67,500 being the unpaid rent as at May 2023 in respect of business premises No. 41 belonging to Katharaka Primary School.(ii)That the tenancy between the landlord and tenant in the business premises No. 41 Katharaka Primary School be terminated.(iii)That costs of the application be provided for.

2. The application is supported by the affidavit of Francis Kirimi Ashford (the Chairman of the Board of Management (BOM) Katharaka Primary School) together with the following grounds;(a)That Katharaka Primary School has 42 commercial premises within the school land which are managed by the BOM Katharaka Primary School.(b)That the 42 commercial premises are used to raise money that helps the school to supplement the Ministry of Education capitation fund which is hardly enough.(c)That on or around December 2017, the BOM Katharaka Primary School and the tenant entered into a landlord/tenant agreement by which the tenant took a business premises on Plot No.41 belonging to Katharaka Primary School.(d)The agreed rent payable by the tenant to the landlord for the business premises was- Ksh.2,100 per month and which money was payable in advance on or before 10th day of each succeeding month.(e)That the tenant took possession of the suit premises on or around December 2017. (f)That the tenant was not a very good tenant and from time to time fell into arrears of unpaid rent so much so that as at October 2021, the tenant had fallen into arrears of Ksh.30,000. (g)Even after demand notice was made to the tenant reminding him to pay the arrears, the tenant was not keen enough to pay the rent owing to the landlord and as at May 2023, the tenant had fallen into arrears of Ksh.67,500. (h)That in January 2021, the tenant paid Katharaka Primary School Ksh.5,000 but remained indebted.(i)That the tenant should be ordered and compelled by this tribunal to pay the outstanding rent arrears of Ksh.67,500. (j)That it will be in the interest of justice that the tenancy between the landlord and the tenant be terminated by an order of this tribunal.(k)That the tenancy between the tenant and the landlord is a controlled tenancy and as such the intervention of this honorable tribunal is required for it to be terminated.

3. In his supporting affidavit sworn on 22nd May 2023, Francis Kirimi Ashford reiterates the grounds set out on the face of the application and attaches a letter marked ‘FKA1’ from the school authorizing institution of this case against the tenant.

4. He reiterates that on or around December 2017, the BOM Katharaka Primary School and the tenant entered into a landlord/tenant agreement in respect of the business premises on Plot No.41 belonging to the school.

5. That on or around March 2021, the BOM Katharaka Primary School invited the tenant to execute a tenancy renewal agreement but the tenant ignored, neglected and or refused to avail himself for signing of the agreement. However, the tenant took possession of the business premises. The agreed rent payable by the tenant to the landlord for the business premises was Ksh.2,100 per month and which money was payable in advance on or before 10th day of each succeeding month. The tenant took possession of the suit premises on or about December 2017.

6. The tenant is accused of falling into arrears from time to time and as at October 2021, the tenant had fallen into arrears of Ksh.30,000.

7. Even after demand notice was made to the tenant reminding him to pay the arrears, the tenant was not keen enough to pay rent whenever due and owing to the Landlord and as at May 2023, the tenant had fallen into arrears of Ksh.67,500.

8. In January 2021, the tenant paid Katharaka Primary School a sum Ksh.5,000 but still remained indebted.

9. The landlord contends that the tenant owes Ksh. 67,500 in rent arrears which he should be ordered and compelled by this tribunal to pay in the interest of justice. The landlord further prays that the tenancy between it and the tenant be terminated by an order of this tribunal as it is a controlled tenancy and as such the intervention of this honorable tribunal is necessary.

10. The application is opposed through the tenant’s replying affidavit sworn on 2nd October 2023 as being frivolous, vexatious and an abuse of the tribunal's process and only intended to frustrate, deny and/or interfere with his quiet enjoyment of the rented business premises.

11. He deposes that on or about September 2017, he expressed interest to take the suit premises and thus entered into a tenancy agreement with the landlord. He did not occupy the rented premises immediately as there was welder in occupation. He only took vacant possession of the premises sometimes in April 2018 and started partitioning and equipping it with his tools of trade to make it fit for his hotel business.

12. The tenant deposes that he peacefully carried on business in the rented premises until sometimes in January 2020 when the landlord started harassing him by disconnecting electricity and eventually closed the business premises between April and May 2021 thus denying him access and all his efforts to have the premises reopened were fruitless. The landlord alleged that the tenant was in rent arrears.

13. The tenant denies having been invited for renewal of the tenancy agreement sometimes in March 2021 stating that he never received any communication, written or verbal from the landlord regarding renewal of the tenancy.

14. He deposes that a legally binding tenancy agreement required to be mutually consented to by the landlord and tenant. He denies having seen, received and/or signed the tenancy agreement annexed to the Applicant's supporting Affidavit as ‘FKA2’ which is only executed by the Landlord.

15. He denies the allegation that he defaulted in rent payment and that he was in rent arrears of Kshs. 67,500/= as he always paid his rent on time and in full until the landlord locked up the business premises denying him access and thereby interfering with generation of income. He therefore seeks for reconciliation of the rent account and attaches his Mpesa statements confirming rent payment as ‘KGN-1’.

16. He deposes that the business premises remained closed for a period of over two years and the same was only opened with the help of OCS Ntumu Police Station upon delivery of the tribunal's ruling of 9th June 2023 and an order dated 12th June 2023 marked ‘KGN-2’.

17. The landlord filed a supplementary affidavit by its Chairman which was sworn on 8th November 2023 deposing that the tenant took possession of the rented premises in April 2018 and that there was evidence that he had paid rent as early as 19th September 2017. He only took two months after commencement of the tenancy to start using the premises. On 1st and 7th November 2017, the tenant paid rent while in occupation of the premises.

18. The landlord denies ever harassing the tenant and deposes that the issue of electricity came about when the token supplied to 8 tenants including the tenant herein were vandalized and stolen which matter was being investigated by both the DCI and the Resident Engineer Kenya Power and Lighting Company as the tenant continued to use the premises.

19. It is further deposed that review of rent payable was made in 2019 and not in 2021 and all other tenants executed the renewal agreement except the tenant herein whose draft agreement is attached to the landlord’s reconciled account. The tenant having failed to execute the renewal agreement, he continued to pay Ksh.2000 per month from 1st January 2019 and as such he cannot hide under the unexecuted agreement.

20. It is finally deposed that there was no time that the landlord ever closed the suit premises and that it is the tenant who has from time to time kept the premises under lock and key and the reconciled accounts fully show that the tenant owes the landlord Ksh.78,300.

21. The matter was directed to be canvassed by way of written submissions and both parties complied.

22. Based on the foregoing pleadings, the following issues arise for determination: -(a)Whether the landlord is entitled to the reliefs sought in the application dated 22nd May 2023. (b)Who is liable to pay costs?

23. It is noteworthy that the parties herein were involved in a previous litigation vide Embu BPRT NO. E026 OF 2023 in which this Tribunal in a ruling delivered on 9th June 2023 allowed the tenant to re-open the suit premises by breaking open the padlocks placed on the doors thereof with the assistance of OCS Ntumu Police Station and to continue doing business therein without any interference by the landlord or its agents. This Tribunal also authorized the tenant to replace the electricity power meter and the internal wiring of the suit premises with the assistance of the Resident Engineer, Kenya Power & Lighting Company Ltd at the Landlord’s costs. Such costs to be defrayed against future rent or any rent arrears found due and owing by the tenant.

24. It is therefore clear that the tenant’s claim that it is the landlord who had closed the suit premises was upheld by this Tribunal in the said ruling. It has not been demonstrated that there was any appeal against the said decision and the findings therein have neither been reviewed, varied or set aside.

25. In the said case, the tenant alleged that the landlord had closed the suit premises from 30th June 2021. Prior to the said closure, the landlord was claiming a sum of Kshs 60,000/= in alleged rent arrears. On the other hand, the tenant contended that he had no rent arrears and that he had overpaid rent by a sum of Kshs 6,900/=. He stopped paying rent after receiving the notice to vacate.

26. Parties were directed to file and exchange their statements of rent account and both complied. We have noted from the landlord’s statement that by 31st December 2018, the tenant had overpaid rent by a sum of Kshs 10,200/=. The tenant paid a sum of Kshs 14,000/= during the year 2019 out of the expected rent of Kshs 24,000/=. Upon applying the overpayment of Kshs 10,200/= to the said amount against the rent payable for the year 2019, a sum of Kshs 200/= is left as an overpayment as at 31st December 2019.

27. In the year 2020, the tenant was expected to pay a total sum of Kshs 24,000/= but only paid 10,500/= leaving a balance of Kshs 13,300/= after deducting the overpayment of Kshs 200/= carried forward from the previous year.

28. The suit premises was closed on 30th June 2021 when the accrued rent for the 6 months was Kshs 12,000/=. The tenant paid a sum of Kshs 5000/= on 18/1/2021 thereby reducing the balance carried forward from the previous year to Kshs 8,300/=. It therefore means that as at 30/6/2021, the rent arrears balance stood at kshs 20,300/=. The premises were reopened on 18th September 2023 as shown in the inventory taken by the police annexed to the replying affidavit of the tenant. The rent for the period between 1st July 2021 to 18th September 2023 is therefore supposed to be excluded in computation of the rent payable to the landlord. The rent payable for the 12 days of September 2023 is Kshs 804/= @ kshs 67/= per day.

29. The rent for the period between 1st October 2023 to 31st January 2024 is Kshs 8,000/=. This means that the total rent arrears owing by the tenant to the landlord is Kshs 20,300 + 804+ 8000 to make a total of Kshs 29,104/= and we therefore enter judgement for the said amount in favor of the landlord.

30. As regards the prayer for vacant possession, the- notice to vacate the suit premises exhibited by the landlord dated 9th June 2021 is not in the prescribed form and does not accord with Section 4(2) of Cap. 301, Laws of Kenya. It is invalid and of no legal effect. Consequently, the said relief cannot inure in favor of the landlord and the same is therefore denied.

31. In regard to costs of the application, the same are in this tribunal’s discretion under Section 12(1)(k) of Cap. 301 but always follow the event unless for good reasons otherwise ordered. We shall order each party to bear own costs given that this tribunal has found that there was indeed a live dispute as to the rent owing by the tenant which has been found to be lower than the amount demanded by the landlord.

32. In conclusion therefore, the following final orders commend to us in this matter: -a.The tenant shall pay to the landlord a sum of kshs 29,104/= being the rent arrears due and owing in respect of the suit premises as at 31st January 2024. b.The landlord’s prayer for vacant possession is hereby dismissed for lack of a proper notice.c.The Landlord is at liberty to issue a proper notice if need be.d.Each party shall bear own costs of the suit.It is so ordered.

RULING DATED, SIGNED & VIRTUALLY DELIVERED THIS 2nd DAY OF FEBRUARY 2024HON. GAKUHI CHEGE - PANEL CHAIRPERSONHON. JOYCE OSODO - PANEL MEMBERIn the presence of:-Mugo for Landlord/applicantTenant/ Respondent in person