[2022] KEBPRT 675 (KLR)

Fredrick Kamau Chege t/a Café Car Wash v Theuri (Tribunal Case E738 of 2021) [2022] KEBPRT 675 (KLR) (Civ) (6 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 675 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E738 of 2021

Gakuhi Chege, Vice Chair

September 6, 2022

Between

Fredrick Kamau Chege t/a Café Car Wash

Tenant

and

Chris Wachira Theuri

Respondent

Ruling

1. Before me is an application dated December 16, 2021 in which the landlord is seeking for an order to levy distress against the tenant in respect of the business premises situate on Land Reference No 13330/10 in Garden Estate, Nairobi. He further seeks that the respondent be ordered to pay rent arrears owing and that the OCS, Kasarani Police Station do assist in execution of the orders.

2. The application is supported by the landlord’s affidavit of even date wherein it is deposed that the monthly rent payable in respect of the demised premises is Kshs 36,300/- which the tenant paid from January 2020. The tenant operates a café, car wash and a bar.

3. The landlord contends that the tenant had rent arrears which accumulated for over one year despite demands to pay. The tenant was initially sublet the premises by a former tenant which fact the landlord became aware of after the original tenant died.

4. It is deposed that the tenant has been troublesome and has been carrying out permanent developments/improvements without the landlord’s consent either implied or express.

5. The tenant is accused of commission of other offences and of declining to enter into a lease agreement despite having participated in drafting verbal lease agreements. He was issued with a notice to vacate for not abiding with implied and express landlord/tenancy terms.

6. The tenant opposes the application through a replying affidavit sworn on February 14, 2022 wherein he deposes that the claim by the landlord was contradictory in that he deposes that the tenant defaulted in March 2020 in payment of rent and attaches a rent account statement showing default and arrears from 2019 when none exists.

7. The tenant admits that the monthly rent payable is Kshs 36,300/- from January 2020 but the same was reduced by mutual agreement in March 2020 upon emergence of Covid-19 pandemic which led to closure of bars and Restaurants. The reduction was to last until the Government eased the restrictions on closure of bars and restaurants.

8. According to the tenant the rent payable for the period between March 2020 to December 2021 is Kshs 399,300/- out of which the tenant alleges to have paid Kshs 363,000/- as confirmed by the landlord’s documents.

9. The landlord on the other hand claims Kshs 673,200/- which the tenant disputes on account of the renegotiated rent. According to the tenant the landlord by a letter dated September 22, 2021 marked ‘FKC1’ demanded a sum of Kshs 416,400/-. The tenant had requested for a breakdown thereof through his advocates.

10. The tenant insists on a breakdown on how the rent demanded is made up and/or reconciliation of accounts as according to him he had an over payment of Kshs 36,300/- as at September 2021.

11. The landlord has been extending the tenant’s lease on several occasions since the demise of the previous tenant and as such his tenancy was not in doubt.

12. The tenant denies having effected constructions without the landlord’s consent saying that he did so with his permission on vacant land to suit his bar and carwash business.

13. To demonstrate that the landlord knew and consented to the developments, the tenant attaches a replying affidavit by the landlord’s agent one Jane W Mburu sworn on April 24, 2019in Nairobi BPRT NO 942 of 2018 marked ‘FKC-3’.

14. He denies having refused to sign a lease save for the one shared on December 3, 2020which had significant changes and efforts to negotiate the terms failed.

15. The landlord swore a further affidavit on February 24, 2022wherein he deposes that the tenant started to default in rent payment in March 2020 for no good reason and by the time of filing the application at land he had stayed for one (1) years without paying rent.

16. The landlord denies the alleged reduction of rent and states that other tenants have been paying rent dutifully.

17. The landlord contends that the tenant was no longer paying rent and his last payment of Kshs 36,300/- was made on February 10, 2022 as per annexure “CW-3” and it was only fair that the application be allowed.

18. The application was ordered to be disposed of by way of written submissions but only the tenant complied. I shall advert to the submissions when dealing with the issues.

19. The following issues arise for determination in this case:-a.Whether there was reduction of monthly rent by half from March 2020 as claimed by the tenant.b.Whether the tenant was in rent arrears from March 2020 as claimed by the landlord.c.Whether the landlord is entitled to levy distress against the tenant.d.Who is liable to pay costs?

20. According to the tenant, the monthly rent payable in respect of the suit premises was increased to Kshs 36,300/- from January 2020. The tenant however contends that the monthly rent was reduced by 50% in March 2020 upon emergence of Covid-19 pandemic. However the landlord disputes the alleged reduction.

21. According to the tenant, he is not liable to pay full rent between March to December 2020 as the same had been reduced by half (50 %) for the said period.

22. Section 107(1) of the Evidence Act, Cap 80, Laws of Kenya provides as follows:-“Whoever desire any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.

23. Section 108 of the same Act provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

24. The only document the tenant refers to as evidence of the alleged reduction of rent is the landlord’s demand letter “FKC-1” dated September 22, 2021for a sum of Kshs 416,400/-.

25. According to the said letter, the tenant was liable to pay Kshs 36,300/- as monthly rent and was in arrears of Kshs 416,400/- as at September 2021. The tenant vide his advocate’s email dated October 12, 2021 sought for a breakdown of the alleged rent arrears.

26. I note that in the said letter, the landlord does not acknowledge any rent reduction as alleged by the tenant. I also note that the tenant has not availed any evidence of payment of rent for the period between March 2020 and the date of filing the instant suit.

27. I am therefore not convinced that rent was reduced by 50% as alleged by the tenant. He has not demonstrated any payment of half (1/2) rent during the period in dispute.

28. On the second issue as to whether the tenant is in rent arrears from March 2020 as claimed by the landlord, I note that the landlord’s application does not state the amount for which distress for rent is intended to be levied upon and despite the tenant seeking for a breakdown of how the rent due is made up, none has been attached to the further affidavit.

29. Although the tenant has not shown how he has been paying rent for the period in issue, it is imperative that the amount in arrears be ascertained before distress can be levied. I shall therefore direct that the landlord files up to date statement of rent account and that the tenant on the other hand do the same and avail evidence of payment of rent within the next Thirty (30) of delivery of this ruling for purposes of ascertaining the amount due as rent arrears.

30. On the issue of costs the same shall abide determination on the issue whether any rent is owing by the tenant to the landlord.

31. In the premises, the following orders commend to me:-i.The monthly rent payable by the tenant is Kshs 36,300/- as there is no evidence of purported reduction by 50% in respect thereof.ii.The amount of rent arrears shall be ascertained by both parties filing and exchanging statements of rent account for the period March 2020 to the date of this ruling in any event within the next Thirty (30) days hereof.iii.The tenant shall attach evidence of payment of rent for the said period to his statement of rent account for purposes of scrutiny by thistribunal and final determination of the rent arrears (if any).iv.Mention date in thirty (30) days to confirm compliance and further orders.v.Costs of the application to abide the outcome of the reconciliation of the rent account.It is so ordered.

RULING DATED, SIGNED & DELIVER VIRTUALLY THIS 6TH DAY OF SEPTEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Kimani for Landlord/ApplicantMiss Irungu for Tenant/RespondentFurther order: Mention on 11/10/2022 to confirm compliance.