[2021] KEBPRT 341 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 162 OF 2020 (NAIROBI)

DANIEL MUMO WILLIAM………………………………………...TENANT/APPLICANT

VERSUS

TERESIAH WAITHIRA MUGI……………….................1ST RESPONDENT/LANDLORD

GOLDLAND ESTATES AHGENCIES LTD………………….2ND RESPONDENT/AGENT

RULING

1. By an application dated 3rd May 2021, the Tenant/Applicant moved this Tribunal seeking restraining orders against the Respondents.

2. Prayers 2 and 5 thereof were granted at the exparte stage and the same are therefore spent.

3. Prayer 4 is seeking for an order to restrain the Respondents from trespassing on, evicting, levying distress, leasing out, attaching and/or in anyway interfering with the Tenant/Applicant’s quiet and peaceful enjoyment of the business premises erected on plot no. KJD/Kaputiei North/3121 pending the hearing and determination of the Applicant’s complaint filed herein.

4. The application is supported by the Applicant’s affidavit sworn on 3rd May 2021 in which he states that he has been a tenant at the suit premises since September 2016 where he operates a motor vehicle garage.

5. According to the Tenant, at the time of taking possession, the suit premises was an open field and he had to erect a perimeter wall around it for security purposes as a result of which he incurred a sum of Kshs.900,031/- which was to be deducted from the agreed monthly rent at a rate of Kshs.20,000/- per month.

6. The agreed rent for the suit premises is Kshs.50,000/- and the balance of Kshs.30,000/- was payable to the Landlord.

7. Sometimes in February 2020, the Landlord is said to have started threatening the Tenant with eviction on account of non- payment of rent and thereby reneging on the earlier agreement to continue paying rent as agreed until full recovery of the cost of erecting the perimeter wall.

8. In the pendency of the current proceedings, the Landlord is said to have also filed an application dated 20th July 2021 seeking orders to compel the tenant to pay rent. The said application is yet to be determined.

9. In February 2021, the Landlord served the Tenant with notice to terminate tenancy dated 10th February 2021 on grounds of failure to pay rent for a period of over one (1) year.

10. According to the tenant, the notice to terminate tenancy could not have taken effect as the issue of rent payment and arrears was pending before the Tribunal for determination and as such he did not file a reference to the said notice.

11. It is the Applicant’s case that there were orders of this Tribunal restraining the Landlord from interfering with his tenancy including termination of the same.

12. On 1st May 2021, the Landlord closed the suit premises with all the tenant’s tools of trade and motor vehicles belonging to his customers alleging that the terminations notice had taken effect.

13. It is deposed by the Tenant that the Landlord intends to benefit from his investment in the suit premises and the termination notice was a scheme to render him jobless.

14. The application is opposed through the Landlord’s replying affidavit sworn on 22nd June 2021 in which he admits entering into a tenancy agreement with the Tenant from September 2016.

15. She concedes that the tenant was to erect a perimeter wall on the suit premises and pay a monthly rent of Kshs.30,000/- from November 2016 and Kshs.20,000/- was to go to recovering of the construction costs.

16. According to the Landlord, the Tenant has not produced any evidence that he spent Kshs.900,031/- by way of receipts for the said expenses.

17. From November 2016 to May 2021, the total expected rent for the suit premises at a rate of Kshs.50,000/- per month is Kshs.2,700,000/- and as he was required to pay Kshs.30,000/- per month, the amount due for the period is Kshs.1,620,000/-. Even with the alleged construction expense of Kshs.900,031/- which is denied, the Landlord states that tenant is still in arrears of rent.

18. Upon obtaining restraining orders of 14th February 2020, the tenant is said to have refused to pay rent to the Landlord.

19. On 29th January 2021, the Tribunal ordered the tenant to pay rent which order he did not comply with as a result of which a notice to terminate tenancy was served upon him. The same is marked annexture “TMW 2” dated 10th February 2021.

20. No reference was filed by the Tenant within the notice period and the orders of 13th February 2020 were on 11th May 2021 vacated.

21. The Landlord therefore seeks for dismissal of the application.

22. On 17th June 2021, this Tribunal directed that the application be disposed of by way of written submissions and both parties filed their respective submissions.

23. I have examined the pleadings as well as the submissions and in my view the issues for determinations herein are the following:-

(a) Whether the applicant’s application dated 3rd May 0221 ought to succeed or fail.

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

24. On the first issue, I have examined the pleadings and submissions of both parties and make the following findings:-

(i) There was an agreement that the Tenant shall construct a perimeter wall around the suit premises and recover Kshs.20,000/- per month with effect from November 2016.

(ii) The amount payable as rent was Kshs.50,000/- which translates to Kshs.2,7000,000/- upto to May 2021.

(iii) The amount claimed by the tenant towards the construction cost is Kshs.900,000/- which when deducted from the total accrued rent leaves a balance of Kshs.1,799,969/-.

(iv) I have not been shown any evidence that the tenant has paid the said balance and in absence of such proof, it will be assumptive for me to say that the tenant is owed money by the Landlord.

(v) I have not been shown any evidence that the Tenant has paid any rent from February 2020 when he obtained the injunctive orders save the sum of Kshs.100,000/- paid pursuant to the Tribunal order.

(vi) The tenant was served with a notice to terminate tenancy but failed to file a reference as required under section 6 of Cap. 301, Laws of Kenya.

(vii) The said notice took effect as provided under section 10 of the said Act.

(viii) The restraining order given by the Tribunal on 12th February 2020 did not in any way stop the landlord from receiving or demanding rent lawfully due to him by the Tenant.

(ix) The notice of termination of tenancy did not in any way contravene the orders of 12th February 2021 as the provisions of section 7 of Cap. 301 Laws of Kenya were not in any way suspended.

(x) The notice having taken effect, there is no basis upon which the tenant’s application can be sustained as he ceased to be a protected tenant.

25. In the premises, I am not satisfied that the tenant has satisfied the test laid down in the celebrated case of Giella – vs- Cassman Brown and co. Ltd (1973) EA 358.

26. I therefore proceed to dismiss the application dated 3rd May 2021 with costs to the respondent.

27. The said costs are assessed at Kshs.15,000/- in favour of the Landlord.

It is so ordered.

DATED, SIGNED and DELIVERED THIS 27TH DAY OF AUGUST 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Miss Mwanzile for the Landlord

No appearance for the Tenant