[2024] KEBPRT 637 (KLR)

Dawida Holdings Limited v Dawida Bar and Restaurant (Tribunal Case E134 of 2023) [2024] KEBPRT 637 (KLR) (4 March 2024) (Ruling)

Neutral citation: [2024] KEBPRT 637 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E134 of 2023

P Kitur, Member

March 4, 2024

Between

Dawida Holdings Limited

Landlord

and

Dawida Bar And Restaurant

Tenant

Ruling

A. Parties And Representatives 1. The Applicant Dawida Holdings Limited it’s the Landlord and the proprietor of the suit premises known as Dawida Bar and Restaurant (hereinafter known as the ‘Landlord’)

2. The Landlord Acts in person.

3. The Respondent Dawida Bar and Restaurant is the Tenant and has rented out the suit premises from the Landlord herein (hereinafter known as the ‘Tenant’)

4. The firm of M/S Mutinda & Wambura Nthiga represents the Tenant herein.

B. The Dispute Background 5. The Landlord filed a Complaint dated 23rd May 2023 stating that it rented out the suit premises known as Dawida Bar and Restaurant to the Tenant herein for a monthly rent at the rate of Kshs. 70,000/=.

6. That the Tenant is in arrears of about Kshs. One Million, Two Hundred and Twenty Thousand (Kshs. 1,220,000/=) which the Tenant has failed to pay, despite being issued with several demand notices.

7. Aggrieved, the Landlord filed a Complaint under section 12 (4) of Cap 301 seeking for the following orders:a.That the Tenant be compelled to pay rent arrears amounting to Kshs. 1,220,000/=.b.The Tenant be ordered to vacate the premises at Voi Township in Taita Taveta Countyc.Costs of this case.

8. In Response to the Complaint, the Tenant through James Mwambela Maganga filed a Replying Affidavit dated 11th September 2023 stating it made considerable payments towards rent which payment was made in cash.

9. Further, the Tenant avered that he was tasked in emptying the septic tank and did not receive payments for the work done from the Landlord. He further avered that he had done repairs upon the property which costs for repair were never agreed upon.

10. I have considered the Landlords Complaint and Further Affidavit, the Tenant’s Replying Affidavit and the Subsequent respective submissions and wish to make a determination as hereunder.

C. List Of Issues For Determination 11. The main issue for determination is as follows;a.Whether the Tenant is in arrears of rent amounting to Kshs. 1,220,000/= and thus the Landlord deserving of the orders sought.

D. Analysis And Findings Whether the Tenant is in arrears of Kshs. 1,220,000/= 12. The Landlord in his Complaint sought, among others, prayers that the Tenant be compelled to pay Kshs. 1,220,000/= being arrears from January 2022.

13. In support of his Claim, the Landlord brought before the Tribunal a Statement of Account indicating the payments made by the Tenant.

14. In their Response, the Tenant stated that it had made considerable payments in the year 2022 but did not produce any evidence to support his claim. I have taken note that the Tenant indicated that he made payments in cash.

15. I have also considered that the Tenant did not produce any evidence to support the claims that they had made substantive payments towards rent.

16. The Tenant has made claims that he is owed monies for repairs as well as payment for emptying the septic tank. The same claims have not been substantiated by any evidence on the record. In my view the real dispute between the parties revolves around non-payment of rent by the tenant.

17. In the case of Samuel Kipkorir Ngeno & Another – vs- Local Authorities Pension Trust (Registered Trustees) & Another (2013) e KLR at paragraphs 9 and 12 the superior court had the following to say: -“A tenant’s first and main obligation is to pay rent as and when it becomes due, for the landlord has the right to an income from his investment. Why would a tenant allow himself to fall into such huge arrears of rent”?

18. It is the Tenant’s assertions he has made good, payment of rent without producing any documentation to back his claims. The court cannot be the refuge of a tenant who fails to meet his principle obligation of paying rent as and when it becomes due”.

19. The tenant has not demonstrated good faith in settling the accrued arrears. The tenant desires that this court continues to protect it to the chagrin of the landlord who is entitled to a return on investment. This is not equity.

20. The power/jurisdiction to permit the levy of distress for rent is donated to the Tribunal under section 12(1) (h) of Cap 301.

21. Under section 12(4), the Tribunal may investigate any complaint relating to a controlled tenancy and may make such orders thereon as it deems fit. That is the provision under which the Applicant’s/Landlord’s Complaint is expressed to be brought under.

22. The right of distress is provided for under section 3 of Cap 293 which provides;3(1) “subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrears and due upon a grant, lease, demise or contract shall have the same remedy by distress for the recovery of that rent or seat service as is given by the Common Law of England on a similar case.”

23. In order to grant the orders sought by the Landlord, I have considered the Statement of Account produced before this Tribunal which demonstrates that there exist arrears of rent upon the lease between the Landlord and the Tenant.

E. Ordersa.The upshot is that the Landlords Complaint is allowed on the following terms;b.The tenant shall clear the arrears of Kshs. 1,220,000 being rent arrears as at 23rd May 2023 in addition to any rent accrued to date no later than 21st March 2024. c.In default, the Landlord is at liberty to proceed to levy for distress of the rent.d.The Tenant shall additionally hand over vacant possession of the premises to the Landlord on or before 31st March 2024 failure to which the Landlord shall be at liberty to break in and enter with the assistance of OCS Voi Police Station or any other Police station with jurisdiction close by.e.Costs are awarded to the Landlord assessed at Kshs. 30,000/=.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR THIS 4TH DAY OF MARCH 2024 IN THE ABSENCE OF THE PARTIES.HON P. KITUR - MEMBERBUSINESS PREMISES RENT TRIBUNAL