[2022] KEBPRT 10 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 166 OF 2017 (NAIROBI)

CAMILLA SIDONGO MWANGI T/A

SIDDONDO MWANGI & CO. ADVOCATES….………………TENANT/APPLICANT

VERSUS

AFRILOG LIMITED……………..………………………. LANDLORD/RESPONDENT

RULING

1. The tenant herein filed a reference dated 24th February 2017 complaining that the landlord had issued her with an unsigned notice to vacate the suit premises by 2nd March 2017 for no good reason and/or excuse and in violation of the law.

2. The tenant states in the reference that she had fulfilled her obligation in respect of rent payment as agreed with the landlord but on a number of occasions, the latter had shown reluctance to accept rent. As a result, the tenant contends that her legal practice would continue to be adversely affected by the constant harassment and interference from the landlord.

3. The tenant filed an affidavit in support of the claim sworn on 5th March 2019 and a further affidavit sworn on 3rd December 2019.

4. On the other hand, the landlord filed a witness statement by Oneil Sundhra Baburam recorded on 3rd May 2021 and a subsequent one by Noreen Wanjiru Mwangi recorded on 20th January 2022.

5. The dispute proceeded by way of viva voce evidence with the tenant testifying without calling any other evidence. She testified that the landlord/tenant relationship lasted between October 2016 and February 2018.

6. The tenant was operating a law firm in the Respondent’s premises. She had paid a deposit of two months rent in the sum of Kshs.110,000/- and the monthly rent was Kshs.55,000/-. The premises comprised of 2 apartment blocks but one was vacant.

7. In the tenant’s block, there were six tenants but she was the only commercial tenant in the premises. The tenant realized after 2 to 3 months into the tenancy that the landlord had a court case with the other 5 tenants. The landlord would fail to send the caretaker to collect rent from her and the tenant fearing falling into arrears decided to come to the Tribunal seeking orders to be allowed to deposit the rent into court in the event of the landlord failing to collect it.

8. The Tribunal directed that the tenant deposits rent into court on 27th February 2017. The tenant deposited rent between March and December 2017 and for the months of January and February 2018. She vacated the premises at the end of February 2018.

9. Sometimes in August 2017, some employees of Nairobi Water Company visited the suit premises and disconnected water. The tenant went to the company offices to enquire the reasons behind the disconnection. She was informed that the landlord’s property had an unpaid water bill of Kshs.383,152/49 which required to be cleared before reconnection.

10. The tenant relied on annexure ‘CSM2’ of her further affidavit which required payment of the bill within 48 hours. She proceeded to settle the bill. She referred to annexure ‘CSM2’ in support of the payment. Out of the said payment, a sum of Kshs.120,000/- belonged to the landlord on the main account and the rest belonged to tenants who had vacated from the abandoned block. The witness referred the Tribunal to page 16 of the further affidavit which is a document emanating from Nairobi water & Sewerage Company Limited dated 3rd August 2017 showing that water was disconnected from the main due to non-payment of various accounts.

11. Upon payment, the water was reconnected. According to the tenant, the monthly rent of Kshs.55,000/- was inclusive of cleaning, garbage, security and electricity services in respect of the common areas.

12. The landlord had no caretaker and the service costs were apportioned to the tenants with each paying Kshs.7500/- for the same per month. After the other tenants were ordered out in November 2017, the applicant continued to meet the overhead costs alone. She paid Kshs.118,400/- for services for the period between November 2017 and February 2018 when she moved out.

13. The tenant is therefore claiming Kshs.622,030/- from the landlord made up as follows:-

(a) Kshs.110,000/- being rent deposit for 2 months.

(b) Kshs.334,430/- paid to Nairobi Water & Sewerage company Ltd.

(c) Kshs.118,400/- paid towards service charge.

14. The tenant further claims refund of amount contributed during the period the service charge was shared with the other 5 Tenants. She attached documents to proof the said expenses.

15. According to the tenant, the total amount of rent deposited in the Tribunal is Kshs.660,000/-. She testified that her claim ought to be paid out from the said court deposit which was made pursuant to the order of 27/2/2017.

16. In cross-examination, the tenant confirmed that the suit premises were residential but she took the same for commercial purposes. There was no written tenancy contract. She stated that she paid the water bill in order to get water supply. The landlord owed Kshs.120,000/- in respect of the water bills paid by the tenant.

17. The tenant stated that she did not know who the other water bills debtors were but the main account belonged to the landlord. Nairobi Water could not get the other debtors.

18. By the time of paying the bill, the other 5 tenants were still in the suit premises.

19. The tenant testified that there was no written agreement with the service provides who were paid for services she claimed refund of.

20. The tenant was shown a petty cash voucher on page 11 of her further affidavit showing payments of Kshs.2500/- and 4000/- which she admitted had a mistake.

21. The landlord called one Noreen Wanjiru Mwangi as its witness. She stated she was an office manager working with the landlord. She relied on the witness statement filed on 20th January 2022. She confirmed that the rent per month for the suit premises was Kshs.55,000/-.

22. The suit premises is on ground floor of the flat no. MA. On 30th November 2016, the tenants were given 3 months notice to vacate so as to give way for renovations. She confirmed that the landlord was liable to pay water bills. The monthly rent was inclusive of water bills.

23. In cross-examination, the tenant stated that she joined the landlord company in April 2019. She was not sure when the tenant went into the suit premises nor the terms of the tenancy.

24. She however confirmed that the tenant was running an office based on the replying affidavit of Oneil sworn on 7/3/2018. She also confirmed that the tenant paid rent deposit which was not refunded. Th deposit was to cater for renovations. It was Kshs.110,000/-.

25. She stated that the said deposit was utilized for repairs although there was no request to the tenant to undertake the repairs. The tenants were to leave the premises as they were. Although the witness stated that an assessment of the premises was done, she did not have the report.

26. According to the witness, the amount of water bill paid for the landlord was Kshs.120,000/-. She disputed that the tenant paid Kshs.324, 000/- On being shown page 14 of the further affidavit, she confirmed that the amount demanded by Nairobi Water & Sewerage Co. Ltd was Kshs.383,152/49. She could not tell if the amount was paid by the landlord or not.

27. She could not either tell how many water accounts were attached to the land parcel owned by the landlord. Upon being shown documents attached to the further affidavit at page 15, she confirmed that Kshs.120,000/- was paid on account of the landlord, Kshs.17,450/- on account of one Jimmy Paruram, Kshs.132,090/- on account of Njan Mercy, Kshs.38,350/- on account of Rachael Mulwa and Kshs.18,550/- on account of Franco Moscarda.

28. The witness stated that only Kshs.120,000/- was paid on behalf of the landlord. She could not tell who was the caretaker. She however confirmed that the landlord was responsible for electricity for common areas, security and cleaning of the building. She stated that services were withdrawn when the tenant was left alone in the building. This was after the notice to vacate lapsed.

29. After the close of both cases, the parties filed and exchanged submissions which I shall consider together with the issues for determination.

30. The issues for determination in this case going by the pleadings and evidence are:-

(a) Whether the tenant is entitled to a refund of Kshs.622,030/- by the landlord.

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

31. It is not in dispute that there was no written tenancy agreement between the tenant and the landlord in respect of the suit premises. It is also common ground that although the suit premises was a residential rental unit, the tenant was using it to run her law firm with the knowledge and consent of the landlord. The monthly rent payable in respect of the suit premises was Kshs.55,000/- which was inclusive of service charge.

32. The landlord issued notices to all the tenants to move out of the building housing the suit premises and whereas all the other tenants vacated therefrom around November 2017, the tenant herein held on until end of February 2018.

33. It is not in dispute that water supply to the suit premises was disconnected on 3rd August 2017 by Nairobi Water and Sewerage Co. Ltd from the main on account of non-payment of water bills on various accounts. This is confirmed at page 16 of the tenant’s further affidavit. Upon enquiry with the Water company, the tenant received a letter dated 21st July 2017 indicating that the various accounts serving the premises had arrears of Kshs.383,152/49 and reconnection of water supply would only be done upon settlement thereof.

34. Being the only tenant in the premises, she was compelled to settle the entire water bill and claim the same from the landlord. The landlord’s account had arrears of Kshs.120,000/-. This amount is admitted by the landlord in filed the replying affidavit and witness statement.

35. The landlord however denies being liable to refund the amount paid on account of other water accounts of tenants who had vacated the suit premises.

36. It is also common ground that the agreed monthly rent of Kshs.55,000/- was inclusive of service charge to cater for security, garbage collection, cleaning and lighting of the common areas and water utilized for the common areas. The tenant testified that after being left in the premises alone, she spent Kshs.18,400/- for the said services. She produced petty cash vouchers as proof of the said payments.

37. Earlier on, the tenant claims to have contributed a sum of Kshs.59,000/- for the same services before the other tenants vacated. She claims refund of the said amount.

38. Finally, the tenant claims refund of the two months deposit in the sum of Kshs.110,000/- which amount is not disputed save that the landlord claims to have used it to restore/renovate the suit premises to its original position after the tenant vacated therefrom.

39. The final issue is that the tenant claims to have deposited a total of Kshs.660,000/- towards rent with this Tribunal pursuant to the orders of 27th February, 2017. I shall address the said claim together with the tenant’s claim for refund against the landlord.

40. The tenant submits that where a landlord fails to perform his or her obligation under the tenancy and the tenant expends money in carrying out such obligation, he is entitled to recover the said expenditure from the monthly rent payable. It is submitted that it was only fair and just that the tenant be refunded the amount paid.

41. I will start with the claim for Kshs.334,430/- paid to Nairobi Water & Sewerage Co. Ltd. I have looked at the documents exhibited by the tenant vide her further affidavit sworn on 3rd December 2019 as annexures’GSM2’ and wish to observe as follows:-

(i) The letter dated 2nd July 2017 by Nairobi Water & Sewerage Co. Limited demands Kshs.383,152/49 and it is addressed to Golf Course L.R No.209/7724.

(ii) The email dated 10th October 2017 gives a break-down of how the amount of Kshs.383,152/- was paid by the tenant and the related accounts.

(iii) Letter from Nairobi Water & Sewerage Co. Ltd dated 3rd August 2017 confirming that water was disconnected from the main due to non payment of various accounts.

42. The landlord argues that it is only responsible to refund Kshs.120,000/- out of the said water bills as the tenant made the payments on her own volition and should not demand for a refund as it was done without the knowledge and/or consent of the landlord.

43. According to the landlord, it has only one account at the Nairobi Water & Sewerage Company for which it had provided a statement confirming payment of Kshs.120,000/-. In my considered view, the landlord was not responsible for payment of water bills left behind by its former tenants and there is no justification why the tenant demands refund of money paid on behalf of third parties. Her cause of action in my view lies against the said former tenants and not the landlord.

44. In any event, since the tenant claimed to have had no outstanding water bills for her water consumption, she ought to have filed suit for mandatory injunction to compel the water service provider to reconnect water supply to her premises. She did not even do a demand letter to either the said company or the landlord. Her claim for refund of Kshs.120,000/- against the landlord is however justified and is not in dispute.

45. In regard to the sum of Kshs.177,800/- being the total amount expended towards maintaining security, provision of water, cleaning of common areas and garbage collection both alone or together with other tenants. She has annexed petty cash vouchers marked ‘CSM1’ to her further affidavit.

46. The landlord submits that it is a stranger to the said common costs since there are no proper records, receipts or details of the alleged payments. According to the landlord, the tenant was illegally and forcefully occupying the property and made local arrangements without its consent to pay for the said common costs which were not within the landlord’s mandate at the particular point in time. No witnesses were called to support the claim.

47. I have looked at the petty cash vouchers marked ‘CSM1’ and note that they were prepared by the firm of Siddono Mwangi & Co. Advocates in respect of guard services, garbage and electricity tokens and are all stamped with the receiving stamp of the said law firm. They are signed by the claimant as the recipient of the payments. No receipts are exhibited to confirm that the said amounts were paid out to third parties neither are there invoices for the services allegedly rendered.

48. This being a claim for special damages must be strictly proved and I am not satisfied that the tenant’s evidence met the required threshold and as such the claim fails.

49. In regard to the claim for refund of Kshs.110,000/- paid as rent deposit, the landlord’s witness claimed that it was used to renovate the suit premises and to restore the same to its original position after the tenant vacated. No evidence of any assessment of damage is exhibited neither has the landlord demonstrated through empirical evidence, how the said amount was allegedly spent on repairs. I find and hold therefore that the tenant is entitled to refund of the said amount.

50. The final issue relates to the sum of Kshs.660,000/- allegedly deposited by the tenant with this Tribunal pursuant to the orders of 27th February 2017. I have gone through the court record and noted that the following payments were receipted by the Tribunal:-

(i) Kshs.55,000/- vide receipt no.0424785 dated 31st March 2017.

(ii) Kshs.55,000/- vide receipt no. 0466306 dated 5th May 2017.

(iii) Kshs.55,000/- vide receipt no. 0466319 dated 31st May 2017.

(iv) Kshs.55,000/- vide receipt no. 0488101 dated 2nd November, 2017.

(v) Kshs.110,000/- vide receipt no. 0444017 dated 10th January 2018.

(vi) Kshs.55,000/- vide receipt no. 0444020 dated 12th January, 2018.

(vii) Kshs.55,000/- vide receipt no. 0463843 which is undated.

51. The total amount received through the said receipts is Kshs.440,000/-. I have noted that although the tenant exhibited copies of deposit slips dated 5th July 2017 and 12/9/2017 for Kshs.55,000/- each, the said payments cannot be verified as the same are not receipted by the Tribunal. I shall therefore work with the figure of Kshs.440,000/- being the verified and receipted amount paid into the Tribunal by the Applicant/Tenant pursuant to the order of 27th February 2017.

52. However, should the difference of Kshs.220,000/- allegedly deposited and not receipted be confirmed by the Tribunal’s account’s department, the same shall be dealt with in the manner hereinafter set forth.

53. Flowing from the above analysis, the tenant is awarded a sum of Kshs.230,000/- made up as follows:-

(a) Kshs.110,000/- being of deposit of rent paid to the landlord.

(b) Kshs.120,000/- being refund of the water bill paid by the tenant on account of the landlord to the Nairobi Water & Sewerage Co. Ltd.

54. The balance of Kshs.210,000/- of the verified amount shall be paid to the Landlord together with any other amount that may be found to have been deposited with the Tribunal by the tenant on account of rent shall be payable by her to the Landlord for the relevant period.

55. In regard to costs, it is trite law that they are in the court’s discretion but always follow the event unless for good reasons otherwise ordered. In this case, the tenant claimed a total sum of Kshs.622,030/-. She has been awarded Kshs.230,000/- and therefore only succeeded partially. If the landlord did not defend the reference, it is likely to have been condemned to pay the whole amount claimed. It therefore means that the Landlord has been able to prove that the tenant is not entitled to a sum of Kshs.392,000/- claimed. I shall therefore direct that each party meets own costs of the reference.

56. In conclusion therefore, I make the following final orders:-

(a) The tenant’s reference is partially allowed.

(b) The tenant shall be paid the sum of Kshs.230,000/- out of the amount deposited with the Tribunal being refund of rent security deposit and water bill paid on behalf of the landlord.

(c) The landlord shall be paid the balance of Kshs.210,000/- out of the amount verified and receipted by the Tribunal on account of rent deposits pursuant to the orders of 27th February 2017.

(d) The landlord shall also be paid a further sum of Kshs.220,000/- being the amount allegedly deposited by the tenant but unreceipted upon verification of the said payments by the Tribunal’s accounts department.

(e) Each party shall bear own costs of the reference.

It is so ordered.

RULING DATED, SIGNED AND DEVELIVERED VIRTUALLY THIS 5TH DAY OF APRIL 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Mr. Mbugua for the Landlord

Mr. Mwangi for Tenant