[2004] KEHC 2406 (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 extraneous considerations and not on the legal requirements for termination of tenancy due to rent arrears. The court held...
Source-derived case information.
- Citation
- [2004] KEHC 2406 (KLR)
- Parties
- Appellant: David Wanjohi Kamau; Respondent: George N. Kamau
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 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
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Parties
David Wanjohi Kamau
Appellant
George N. Kamau
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the respondent's failure to pay rent for over four months justified termination of tenancy under the applicable law.
- 2 Whether the Tribunal erred in allowing the tenant's reference despite admitted arrears of rent.
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 extraneous considerations and not on the legal requirements for termination of tenancy due to rent arrears. The court held that the law entitled the landlord to terminate the tenancy in such circumstances, and the Tribunal's ruling was therefore set aside. The appeal was allowed, 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
16 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