[2004] KEHC 1601 (KLR)
The court found that the respondent was in undisputed arrears of rent for over four months and had a history of irregular payments. The Tribunal's decision to allow the reference was based on irrelevant considerations and a misdirection in law. The existence of mitigating factors did not justify the respondent's...
Source-derived case information.
- Citation
- [2004] KEHC 1601 (KLR)
- Parties
- Appellant: David Wanjohi Kamau; Respondent: George N. Kamau
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 134 of 2001
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Landlord Tenant Disputes, Rent Arrears, Business Premises Rent Tribunal, Appeals Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Wanjohi Kamau
Appellant
George N. Kamau
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the Business Premises Rent Tribunal erred in allowing the tenant's reference despite admitted rent arrears.
- 2 Whether the existence of mitigating factors justified the respondent's irregular payment of rent.
- 3 Whether the Chairman of the Tribunal took into account irrelevant considerations of law and fact.
Ratio Decidendi
The court found that the respondent was in undisputed arrears of rent for over four months and had a history of irregular payments. The Tribunal's decision to allow the reference was based on irrelevant considerations and a misdirection in law. The existence of mitigating factors did not justify the respondent's failure to pay rent as required by law. Consequently, the appeal was allowed, the Tribunal's ruling was set aside, and the respondent was ordered to pay the costs of the appeal and the reference.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The ruling of the Chairman of the Business Premises Rent Tribunal is set aside.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH CURT OF KENYA AT NAKURU CIVIL APPEAL NO. 134 OF 2001
DAVID WANJOHI KAMAU…………………………………APPELLANT
VERSUS
GEORGE N. KAMAU………………………………………RESPONDENT
JUDGMENT
The appellant was the landlord of the respondent in business premises known as Eldoret Municipality/Block 6/72. By a notice dated 21st July, 1999, he sought to terminate the aforesaid tenancy on the ground that the tenant had defaulted in paying rent for a period of two months after the rent had become due and payable. The respondent filed a reference to oppose the said notice. The matter was heard by the Business Premises Rent Tribunal and respondent agreed that at the time when the said notice was served upon him, he was in arrears of rent for over four months and that he had not been regular in his rent payment.
The issue of payment of rent had been taken before the Senior Principal Magistrate’s court which had allowed the respondent to pay some rent arrears by monthly installments of Kshs.10,000/-. That ruling was delivered on 19th June, 2001 and the respondent was clearly told that he had to keep on paying future rents promptly. The respondent, having admitted the existence of the said arrears of rent advanced some mitigating factors that has caused him to fall into arrears and prayed that his reference be allowed.
The learned Chairman of the Tribunal found that the respondent was in arrears of rent but thought that the respondent had advanced reasonable grounds which had caused him to be in that situation. He allowed the tenant’s reference and ordered the parties to bear their own costs of the matter. The appellant was aggrieved by the said determination and filed this appeal. The appeal came up for hearing on 22nd March, 2004 and due to the absence of the respondent’s advocate, the hearing of the same was adjourned to 22nd April, 2004 but on that day the respondent’s advocate once again failed to attend court. Mr. Karanja advocate who held brief for Mr. Buluma, the respondent’s advocate on 22nd March confirmed that he ha informed Mr. Buluma that the appeal was to be heard on 22nd April, 2004.
The appeal was therefore not opposed. I have considered the grounds of the appeal, the proceedings of the Tribunal and the submissions made by counsel. I am of the view that the learned Chairman misdirected himself in arriving at his determination. He also took into account wrong considerations of law and fact. There was no dispute that the respondent was in arrears of rent for four www.kenyalawreports.or.ke months and had all along been irregular in payment of rent. In those circumstances, there were no proper grounds for allowing the reference. I allow the appeal and set aside the ruling of the Chairman of the Business Premises Rent Tribunal. The respondent shall pay the costs of this appeal and of the reference.
DATED, SIGNED & DELIVERED at Nakuru this 6th day of May, 2004.
DANIEL MUSINGA
AG. JUDGE
6/5/2004