[2021] KEBPRT 295 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 175 OF 2020 (MOMBASA)

CHARLES NJIIRI KIGO.....................................................TENANT/APPLICANT

VERSUS

ALICE WACHE NYAMBU........................................LANDLADY/RESPONDENT

RULING

1. The Tenant’s notice of motion dated 13th July 2020 seeks the following orders;

a. Spent

b. Spent

c. Spent

d. That a temporary order be issued restraining the Landlord etc from interfering in any manner whatsoever with the Tenant’s/Applicant’s quiet possession of the Tenant’s/Applicant’s demised premises situated at Birikani area, Kaloleni, Voi, Taita Taveta County pending the hearing and determination of the reference and the main case herein.

e. That the Officer Commanding Voi Police Station be directed to ensure compliance with the orders above and to ensure that law and order prevails.

f. Costs.

2. The grounds upon which the application is brought and the affidavit in support thereof may be summarized as follows;

a. That the Landlady has arbitrarily increased rent from Kshs 18,000 to Kshs 30,000/- contrary to an existing verbal agreement.

b. That the Landlady has reduced the term of the lease from ten to three years without reasonable cause.

c. That the Landlady has been harassing the Tenant with phone calls and text messages.

d. That the Tenant has taken a huge loan to develop the suit premises.

e. That the demised premises was vacant land which the Tenant developed and built thereat a hardware shop.

f. That there is a verbal agreement to increase rent at the rate of 5% per year during the first five years and the rent would stagnate in the last five years.

g. That the Tenant has borrowed Kshs 2,500,000/- to kick off the expansion of his business premises.

h. That the Landlady has now delivered a written agreement for execution by the Tenant which is completely different from the verbal agreement.

3. From the above narration of the Applicant’s case, the only issues that arise for determination are the following;

a. Whether the tenancy between the Applicant and the Respondent is a controlled tenancy.

b. Whether the Applicant is entitled to the orders sought in his application.

4. On Issue No (a);

a. From the Tenant’s affidavit, the relationship between the parties herein is for a period of ten years. The complaint is that the term has been unreasonably reduced to three years. The stated agreement for the term of ten years has NOT been reduced into writing.

b. The agreement that the Landlady seeks to introduce for execution by the Tenant has not materialized.

c.I do therefore find that the tenancy herein is a controlled tenancy within the definition of a controlled tenancy under section 2(1)(a) of Cap 301 of the Laws of Kenya.

d. This Tribunal is therefore well clothed with jurisdiction to hear and determine this dispute.

5. On Issue number (b)

a. The Respondent has not filed any response to the Tenant’s application. The facts deponed to in the supporting affidavit of the Tenant are not challenged in any material way.

b. The Landlord’s attempt to vary the terms of a controlled tenancy ought to have adhered to the provisions of section 4(2) of Cap 301 which requires that a notice to that effect be served upon the Tenant.

c. I have not seen any notice served upon the Tenant of the Landlady’s intention to increase the rent payable or reduce the term of the lease.

d. I will, in these circumstances, allow the application dated 13th July 2020 in terms of prayers 4, 5 and 6 of the said application.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered on by Hon Cyprian Mugambi Nguthari this17thday of September 2021in the absence of the parties.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL