[2025] KEBPRT 172 (KLR)

Diriye v Silver Dash Limited; Mohamed (Interested Party) (Tribunal Case E1234 of 2024) [2025] KEBPRT 172 (KLR) (14 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 172 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1234 of 2024

CN Mugambi, Chair

March 14, 2025

Between

Abdikhani Abdi Diriye

Applicant

and

Silver Dash Limited

Respondent

and

Abdi Issack Mohamed

Interested Party

Ruling

Introduction 1. The Tenant’s Application dated 11. 11. 2024 seeks the following orders;-a.That pending the hearing and determination of the Reference herein, the Respondent be prohibited from in any manner whatsoever interfering with the Tenant’s lawful enjoyment of the suit premises at Shop Number GB09 at Shujaa Mall.b.That pending the hearing and determination of the Reference, the Respondent be injuncted from charging the Applicant a daily penalty of Kshs. 5,000/= for late rent payment.c.That pending the hearing and determination of the Reference, the Respondent be injuncted from unlawfully collecting the alleged arrears of Kshs. 400,064/= emanating from a lease agreement that is unknown and foreign to the Applicant.d.That the OCS Kilimani Police Station to ensure compliance with the orders sought by the Applicant.e.Costs.

The Tenant’s depositions 2. The Affidavit in support of the Application may be summarized as follows hereunder;-a.That the Tenant/Applicant is the rightful Tenant and proprietor of Shop No. GB09 (the suit premises) at Shujaa Mall through a transfer from Shariff Mohamed Abdullahi through a letter dated 15. 5.2024. b.That pursuant to the said transfer, the Tenant obtained all rights and obligations to the suit premises effective 15. 5.2024 but has been unable to enjoy his legal rights due to violations by the Landlord/Respondent.c.That since July 2024, the Landlord has restricted the Tenants access and has also disconnected the electricity supply to the premises.d.That despite repeated requests, the Landlord has not issued the Tenant with a formal lease nor provided specific terms and conditions governing the occupancy of the premises.e.That the Tenant was issued with an offer letter which he signed under the assumption that a fair lease would follow.f.That the Respondent has since imposed a daily penalty of Kshs. 5,000/= for late payment of rent which penalties were never disclosed to the Tenant.g.That the Landlord is also claiming the sum of Kshs. 400,064/= in rent arrears based on terms that the Tenant had never agreed on and the demand is therefore unreasonable, unbinding and unfair.h.That the Tenant invested in developing the premises but has been denied access since and the Landlord has intentions to repossess the shop.

The Tenant’s Application dated 18. 11. 2024 3. The Tenant’s Application dated 18. 11. 2024 sought orders that the OCS Kilimani Police Station enforces the orders issued by the Tribunal on 13. 11. 2024 and further that the Tribunal be pleased to issue an order in favour of the Tenant for repossession of Unit GB09 at Shujaa Mall after the re-opening of the said Unit. The Applicant also sought an order for the return of the Tenant’s goods back to the suit premises and the provision of a full inventory of the goods taken.The Tenant further sought an order of injunction against the Respondent restraining it from leasing or offering for lease the suit premises.

4. The Affidavit sworn by the Tenant in support of the Application may be summarized as follows;-a.That on 13. 11. 2024, the Tribunal gave unconditional Orders for the re-opening of the suit premises and the Respondent has refused to comply with the said orders.b.That the Respondent alleges to have repossessed the premises on 11. 11. 2024 prior to the orders of the Tribunal without issuing notice and in clear violation of the Tenant’s rights.c.That the Tenant is gravely concerned about his personal property and the stock in the suit premises.d.That the Respondents have also failed to provide a video recording of the repossession process within the 24 hours demanded by Counsel for the Tenant.

The Landlord’s Application dated 2. 12. 2024 5. The Landlord’s Application dated 2. 12. 2024 has sought orders that the orders issued by the court on 27. 11. 2024 be set aside, and the Respondent’s notice of Preliminary objection be set down for hearing.

6. The Landlord’s affidavit in support of the Application may be summarized as follows hereunder;-a.That the issues raised in the Applicant’s notice of motion dated 18. 11. 2024 have already been overtaken by lawful events taken by the Respondent.b.That a lease agreement was duly issued to the Applicant but he refused to sign.c.That the alleged obstruction of the premises by the Tenant is self imposed as he is the one who boarded the premises.d.That the Landlord has by way of a notice of Preliminary Objection objected to the Jurisdiction of the Tribunal.e.That the premises has already been leased out to a new Tenant who has started operating the same and the orders issued on 27. 11. 2024 are therefore unenforceable and the Applicant is no longer a Tenant of the Respondent.

7. The Tenant’s Replying affidavit to the Landlord’s motion dated 2. 12. 2024 may be summarized as follows;-a.That the orders issued on 27. 11. 2024 were issued after the Respondent failed to appear in court despite being properly served.b.That the Respondent/Landlord has not satisfied the legal criteria for the granting of the orders that it is seeking.c.That the granting of the orders sought would allow the Landlord to lease out the suit premises and render the Tenant’s suit nugatory.d.That the Landlord’s failure to comply with court orders demonstrates its lack of respect for the authority of the court.e.That the Landlord’s Application would set a dangerous precedent undermining the authority of the court and encouraging frivolous Applications to delay justice.

The Replying Affidavit by the Interested Party 8. The Affidavit of Abdi Isaac Mohamed the Interested Party sworn on 26. 2.2025 may be summarized as follows hereunder;-a.That he is the current licensee and lawful occupant of the suit premises having been granted a valid lease dated 11. 11. 2024. b.That the Applicant’s (in the motion dated 18. 11. 2024) averments that the premises were vacant are incorrect as the Interested Party had already taken possession.c.That the orders issued on 13. 11. 2024 are problematic as they do not reflect the Interested Party’s existing lawful occupation of the premises.d.That the Interested Party is only insisting that his rights as the current licensee and occupant of the suit premises be safe guarded.e.That any ruling in favour of the Applicant would directly violate the Tenant’s rights as the lawful occupant of the suit premises.f.That the Interested Party had no prior knowledge of any dispute between the Applicant and the Respondent before entering into his valid lease agreement and is therefore an innocent party in this matter having taken possession of the suit premises in good faith.g.That by the time the Tribunal issued its orders on 13. 11. 2024, the Interested Party had already taken over the suit premises and the Application is therefore overtaken by events.h.That the Applicant’s prayer for an inventory lacks merit as the premises were handed over to the Interested Party in bare condition and if indeed the Tenant was in occupation, he should have provided a prior inventory.i.That the Tenant’s prayer for injunctive relief has already been overtaken by events as the suit premises have already been leased out.

Analysis and determination 9. The issues that arise for determination in my view are whether the Tenant and the Respondent are entitled to the orders that they have sought in their respective Applications.

10. The basis of the Tenant’s tenancy is a letter dated 15. 5.2024 wherein the Tenant accepted transfer of the suit premises in his favour from one Mr. Shaffi Mohamed Abdullahi. This transfer appears to have been acknowledged by the Respondent in their letter of 25. 10. 2024. In the said letter, the Tenant was required to avail himself at the offices of the Respondent to execute a formal lease agreement and to clear accrued rent arrears of Kshs. 400,000/=. Failure by the Tenant to meet the above demands, it was said, would lead to a cancellation of the assignment of the suit premises to the Tenant.

11. The Counsel for the Tenant responded by claiming that his client had been obstructed from the suit premises since July 2024 and further stating that the rent for Kshs. 400,000/= was unreasonable and unjustified. On the 11. 11. 2024, Counsel for the Landlord wrote informing the Tenant that the Landlord had taken possession of the suit premises due to the Tenant’s refusal to pay the rent arrears and sign the lease agreement.

12. It would appear that although there was an intention on the part of the parties to execute a lease agreement, none was executed. It is also apparent that the tenancy arrangement between the parties was ambiguous. I am not able to tell on what terms the previous Tenant occupied the suit premises and on what terms the Tenant herein took up the tenancy. Both parties have shied away from disclosing the terms of the tenancy, oral or otherwise. The situation is compounded more by the fact that the Tenant has not demonstrated any evidence of even a single payment of rent and neither has the Respondents demonstrated on what basis it is seeking the rent arrears of Kshs. 400,064/=. The purported tenancy between the parties would in my view fail on the basis of ambiguity. If the Tribunal was to enforce the tenancy, it would be enforcing its own terms and if on the other hand the Tribunal was to make an order for the payment of the alleged rent arrears, it would still be making an assumption as to the terms of the tenancy as far as the rent payable is concerned.

13. I also note that the Landlord took up possession of the suit premises on 11. 11. 2024 and although the Application by the Tenant was filed on 11. 11. 2024, possibly in reaction to the Respondent’s letter of even date, the orders were issued in favour of the Tenant on 13. 11. 2024, after the Landlord had taken possession. The orders of 13. 11. 2024 sought to injunct an event that had already taken place as properly stated by the Respondent.

14. The matters are not made any better by the entry into the fray of the Interested Party. I have seen a lease agreement dated 11. 11. 2024 between the Interested Party and the Respondent/Landlord over the suit premises. The Interested Party has stated that he has already taken up possession of the suit premises pursuant to the terms of the lease between himself and the Respondent. I think the Landlord having taken up possession of the premises on or about 11. 11. 2024, the Interested Party cannot be faulted for entering into a lease agreement with the Respondent and taking possession of the suit premises.

15. In the circumstances, it is my finding therefore that the suit and Application by the Tenant were clearly overtaken by events.

16. It is my further finding that the premises having been given out to another Tenant in circumstances that obtained, the Applicant is no longer a Tenant of the Respondent.

17. In the absence of clear terms and conditions of the lease agreement, I also do not find the claim for rent (arrears) by the Landlord justified and also finds no basis upon which the claim for Kshs. 400,064/= is based. It is dismissed for want of particularity.

Disposition 18. In concluding this matter, I do make the following orders;-a.The Tenant’s Application dated 11. 11. 2024 is dismissed.b.The Landlord’s claim for rent arrears amounting to Kshs. 400,064/= is dismissed.c.All interlocutory orders in this matter are discharged.d.The Reference by the Tenant is dismissed.e.Each party will bear their own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF MARCH, 2025HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Ahmed for the Tenant and Mr. Kiamba for the Landlord and in the absence of the Interested Party and Counsel.