[2021] KEBPRT 65 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 178 OF 2012 (MOMBASA)

ELIZA MUCHIRI......................................................................TENANT/APPLICANT

VERSUS

SIDI KATANA................................................................LANDLORD/RESPONDENT

RULING

1. The Tenant’s case in this matter proceeded and was concluded on 28th March 2017. On 10th November 2017, the Landlord’s case proceeded and was closed. At the close of the Landlord’s case, counsel for the parties were ordered to file the submissions of their respective submissions of their respective clients and the matter fixed for mention on 14th December 2017 at Nairobi to confirm compliance.

2. By its ruling of 23rd February 2018, the Tribunal stated as follows;

“The Tribunal has noted in the course of the preparation of the judgement that the Tenant’s reference herein does not seek compensation from the Landlord. The core evidence of the Tenant was on the issue of compensation which is not part of the claim in the reference. The Tenant continues to be in possession of the suit premises not doing any business and not paying rent.”

The matter be mentioned on 7th May 2018 at Mombasa to enable the parties to engage further on the way forward. Costs in the cause.

3. On 16th May 2018, the Tribunal ordered the matter to be stood over to the next session for the Tenant’s advocate to make an appropriate application. This application is the one filed by the Tenant on 8th May 2018 wherein the Tenant sought leave to amend the complaint filed on 3rd August 2012 and filed on 8th August 2012.

4. On 31st January 2020, Mr Odhiambo, counsel for the Tenant informed the Tribunal that he had filed the Tenant’s submissions (I think these are the submissions by M/s Odhiambo SE and Co Advocates received in court on 16th May 2019)and the Tribunal reserved its ruling on that application for the 5thday of March 2020.

5. The Tenant’s notice of motion to amend is opposed. The Landlord/Respondent has filed an affidavit through her advocate Mr Kioko Maundu whose main thrust is that the Tribunal is functus officio, and has no powers to grant the orders sought. The Respondent has further stated that there exists Kilifi SRMCC No. 369 of 2011 in which the Tenant seeks more or less the same orders.

6. The Tenant’s motion seems to have been prompted by the ruling of the Tribunal dated 23rd February 2018 outlined under paragraph 2 above. The Tenant’s amendment seeks to include restraining and prohibitory orders against the Landlord and compensation as particularized in the amended reference.

7. I recognize the absurdity of amending pleadings after parties have closed their respective cases and particularly where the Applicant does not seek to reopen her case to call further evidence in support of her case or in proof of the prayers sought by the amendments.

8. But the circumstances of this case though, are unique. The Tenant states as follows in his affidavit in support of her application.

Paragraph 6;

“That I do urge the court to allow me to amend the complaint and include a prayer for compensation for damages and loss of income.”

Paragraph 7

“That I gave evidence in support of my prayer for compensation.”

Paragraph 8

“That the Landlady/Respondent will not suffer any prejudice because her advocate cross-examined me on the issue of compensation for damages and for loss of income.”

9. I have gone through the evidence of both parties in the proceedings before the Tribunal and indeed it is true that the Tenant gave evidence in support of her prayer for compensation and loss of income and was cross-examined on the same extensively by counsel for the Landlady. I therefore do find that the prayer for amendment will not prejudice the Landlord/Respondent.

10. The Tenant has not applied to reopen her case, she is therefore not calling any further evidence nor producing any documents in further proof of her case. The Tenant in the circumstances has deemed the evidence on record as sufficient in proof of her case and I can do no more than hold her to it. I will therefore allow the Tenant’s application to amend her reference with no orders as to costs. The amended reference dated 7th November 2018 shall therefore be deemed to be the Tenant’s reference for the purposes of this ruling/judgement. Having allowed the amendment, I now proceed to analyze the parties’ respective cases and the issues that arise for determination.

11. The Tenant testified on his own behalf. She did not call any witnesses. Her evidence in chief may be summarized as follows;

a. That she has been carrying on the business of wines and spirits at plot No. 454 paying a monthly rent of Kshs 12,000/-. She had an agreement with the Landlord’s agent.

b. That she had licences to carry out her business and was also paying taxes.

c. That the suit premises had no water, toilet, had defective wiring and was generally not in a tenantable condition. The premises also had a Swahili ceiling which collapsed.

d. That the Landlord put up a structure in the premises which blocked the access to the premises.

e. That the Tenant did not carry out any illegal constructions on the suit premises.

f. That the Landlord refused to repair the premises.

g. That the Landlord instructed auctioneers to levy distress for rent for Kshs 84,000/-. The Tenant did not see any order allowing the auctioneers to levy distress.

h. That the Tenant is no longer carrying out any business in the suit premises having stopped at end of 2013. He however still has the keys to the premises.

i. That the Tenant seeks compensation from the Landlord for lost business at the rate of Kshs 3,000/- per day.

j. That the Tenant filed a case for re-assessment of rent and the rent was reduced by the Tribunal up to Kshs 4,000/- per month which the Landlord refused to accept.

k. That it is not possible to continue with the business in the current environment.

l. That the Tenant has lost over Kshs 15,000 per day and stock of about Kshs 200,000/-.

12. Upon cross-examination by counsel for the Landlord, the Tenant stated as follows;

a. That she had no document to show she had a stock of Kshs 200,000/-.

b. That she had no documents to show that she was earning Kshs 3,000/- per day.

c. That she was not prevented from vacating the premises, she received the proposal to vacate the premises from the Landlord’s advocate.

d. That the Tenant paid Kshs 3,000/- for the licence and Kshs 15,000/- to construct the shade.

e. That the suit premises is a bar not a shop.

13. The Landlord also called one witness, Mr Moses Mathew Osoro whose testimony may be summarized as follows;

a. That he is a licenced estate agent managing the suit premises on behalf of the Landlady.

b. That he renovated the premises and installed electricity meters for all the Tenants.

c. That the Tenant herein took tenancy of shop No. 8 in the premises paying a monthly rent of Kshs 12,000/-.

d. The Tenant is in rent arrears of Kshs 900,000/- (rent statement produced as Landlord’s exhibit 8).

e. The Tenant changed the use of the business into a bar against the wish of the Landlord and further carried out construction of extensions without the consent of the Landlord. The extensions obstructed other Tenants.

f. That the Landlord has not locked the premises, the Tenant is still in occupation of the suit premises, she has access to the premises.

g. The Landlord has produced various correspondence and the pleadings in SRMCC No 369 of 2011 as exhibits in this matter (I will consider them in the ruling).

h. Upon cross-examination by counsel for the Tenant, the Landlady’s witness stated as follows;

a. That the plot No is 5054/500.

b. That the witness used the Landlord’s building plans (exhibit No 4) to carry out the renovations on the suit premises.

c. That shop No. 8 has its own meter.

d. That he is not aware that the rent had been reduced to Kshs 4,000/- from Kshs 12,000/- by the Tribunal.

e. That the Tenant destroyed the ceiling.

14. The issue that arises for determination is whether the Tenant has proved the claims set out in her amended reference and whether therefore she ought to be granted the orders sought in the said reference.

15. In civil suit No 369 of 2011 (Kilifi SRMCC) Eliza Muringo Muchiri Vs Sidi Katana and 2 others, the court in its ruling delivered on 14th June 2012, made the following orders;

a. That the notice of motion dated 7th December 2011 is dismissed with costs to the Respondent.

b. …

c. The goods to be released to the Applicant upon payment of storage/auctioneers charges.

d. The Applicant to pay all rent arrears between January 2012 to date failing which distress shall continue.

e. …

f. …

16. From the court record, the Tenant appears to have appealed against the above ruling but nothing more has been stated about the said appeal and or whether there were orders staying or varying the orders dismissing the Applicant’s motion before the Magistrate’s Court at Kilifi. The issue of distress for rent therefore seems to have been dealt with in the Magistrate’s Court and distress was allowed to proceed on the terms in that court’s orders.

17. I also note that the Tenant has not denied owing rent to the Landlord. The Tenant admits to being in possession of the keys to the business premises and even after she was requested by counsel for the Landlord to vacate she continued being in possession. Her failure to voluntarily render vacant possession of the suit premises meant that she remained a Tenant of the Landlord and therefore liable to pay the agreed rent.

18. The Tenant has suggested that the rent was reduced by an order of the Tribunal to Kshs 4,000/- from Kshs 12,000/-.I have seen on the record, a Tenant’s notice to obtain re-assessment of rent by Eliza Muchiri dated 14th February 2012. I have, though, not seen any court order allowing the notice to reduce rent from Kshs 12,000/- to Kshs 4,000/-. The Tenant has only stated at paragraph 11 of her affidavit sworn on 3rd August 2012.

“That I did issue a notice to the Landlady for alterations of the terms of tenancy and the Landlady did not file any reference thus the notice became effective.”

19. I hold the view that the nature of the relief sought by the Tenant in her notice required the sanction of the Tribunal to take effect. The Tenant made no such application before the Tribunal to have the reduction of the rent payable formalized. I have also not seen any notice to the Landlord specifying the changes in rent payable, no wonder the Landlady has denied knowledge of the rent reduction.

20. While on this issue, I also hasten to note that it does not form part of the Tenant’s amended reference and considering it any further would amount to determining an issue that the Landlord was not called upon to defend herself.

21. That said, I decline to issue the orders of prohibition and restraint sought in the Tenant’s amended reference.

a. The Tenant’s claim for Kshs 3,300/- each for 12 tables damaged by the Landlady and/or her agents amounting to Kshs 39,600/- is not supported by evidence. Indeed, it is not mentioned anywhere in any pleadings and testimony of the Tenant. It is dismissed.

b. The Tenant’s claim for Kshs 15,000/- for the shed damaged by the Landlady and/or her agents is also not supported by the evidence on record. The damage to the shed has not been particularized, no costing of the same has been done, no receipts have been produced. I dismiss the same.

c. The demand for the refund of Kshs 30,000/- being licence fee is not justified. The Tenant was not paying the license fee on behalf of the Landlord. She was paying the licence fee to facilitate the authorization to carry out her own business. No reasons have been given on the basis of which this order may be issued in favour of the Tenant. It is dismissed.

d. The Tenant’s claim to be compensated for loss of business at the rate of Kshs 30,000/- per day is also not supported by the evidence on record. The Tenant in her evidence states that she used to make Kshs 3,000/- per day (part of the handwritten proceedings indicate Kshs 3,000/- per month!!). The proceedings also indicate the Tenant’s losses to have been above Kshs 15,000/- per day.

e. It is not clear from the Tenant’s evidence what amount of money she was making per day. Even if it would have been plainly stated in the proceedings, the claim would still fail for lack of proof. The Tenant has not produced any books of accounts to show her profit and loss margins. There is absolutely no evidence produced to prove this limb of the Tenant’s claim. I dismiss the same. It is trite law that special damages ought to be specifically pleaded and specifically proved. I find that the Tenant has failed so to do.

22. In conclusion therefore, the Tenant’s amended reference dated 7th November 2018 is dismissed with costs to the Landlady.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 21ST DAY OF DECEMBER, 2021 IN THE ABSENCE OF THE PARTIES.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL