[2021] KEBPRT 352 (KLR)
The tribunal found that the applicant had established a prima facie case for injunctive relief, as the respondents failed to controvert his evidence. The landlord's attempt to recover rent arrears incurred by a previous tenant from the applicant lacked legal foundation, and the notice to vacate did not comply with...
Source-derived case information.
- Citation
- [2021] KEBPRT 352 (KLR)
- Parties
- Applicant: Gabriel Nderitu; Respondent: Peter Nduati; Respondent: Ramji Dhanji Gami
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 122 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Applications
- Outcome
- applications allowed
- Legal Topics
- Controlled Tenancy, Rent Arrears Liability, Illegal Eviction, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Nderitu
Applicant
Peter Nduati
Respondent
Ramji Dhanji Gami
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Applications
Legal Issues
- 1 Whether the applicant is liable to pay rent arrears allegedly incurred by a previous tenant.
- 2 Whether the landlord can lawfully evict or interfere with the applicant's tenancy based on a notice that does not comply with statutory requirements.
- 3 Whether the applicant is entitled to injunctive relief restraining the respondents from eviction or interference.
Ratio Decidendi
The tribunal found that the applicant had established a prima facie case for injunctive relief, as the respondents failed to controvert his evidence. The landlord's attempt to recover rent arrears incurred by a previous tenant from the applicant lacked legal foundation, and the notice to vacate did not comply with section 4(2) of Cap. 301, rendering any eviction based on it unlawful. The tribunal emphasized its duty to protect tenants of controlled tenancies from unlawful eviction and held that the applicant was not liable for the previous tenant's arrears. Consequently, the tribunal granted orders restraining the respondents from evicting or interfering with the applicant's tenancy and...
Court Disposition
applications allowed
Orders
- The respondents are restrained from evicting or in any other manner interfering with the applicant's peaceable occupation and use of the premises known as Donholm house no. 1.
- The respondents are restrained from demanding or recovering the sum of Kshs.47,000/- allegedly incurred by the previous tenant from the applicant.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 122 OF 2020 (NAIROBI)
GABRIEL NDERITU........................................TENANT/APPLICANT
VERSUS
PETER NDUATI..............................1ST RESPONDENT/LANDLORD
RAMJI DHANJI GAMI..........................2ND RESPONDENT/AGENT
RULING
1. Before me are two motions dated 30th January 2020 and 21st June 2021 by the Tenant/Applicant.
2. The application dated 30/1/2020 in material part is seeking for this Tribunal to order that the Respondents stay their disputed claim and/or any recovery attempts for rent arrears of Kshs.47,000/- against the Tenant/Applicant allegedly incurred by the previous tenant.
3. The Tenant/Applicant further prays for determination that he is not in rent arrears and there is no obligation to settle arrears incurred by a former tenant.
4. The application is supported by the affidavit of Applicant/Tenant sworn on even date in which he says that he was introduced to the vacant premises by one Richard Muita who was the caretaker and employee of the defendants.
5. He was required to pay rent of Kshs.25,000/- and a deposit of Kshs.50,000/- being two months rent. He sent Kshs.47,000/- to the 1st defendant’s cellphone no. 0726660173 via Mpesa before occupation.
6. He later issued a cheque for Kshs.32,000/- in the 1st defendant’s name and was introduced on 9th March 2016 to the defendants as the new tenant and started operating in the name “Senior Annex Bar and Restaurant”.
7. In June 2016, the 1st defendant claimed that the previous tenant incurred rent arrears which would be recovered from the Applicant.
8. In November 2016, the tenant surrendered part of the demised premises and as such rent dropped to Kshs.15,000/- from Kshs.25,000/- which he has been paying todate.
9. The Tenant states that despite paying rent promptly, his account has been debited with Kshs.58,240/-.
10. The Tenant claims that the Landlord has threatened to lock his premises on account of previous tenant’s rent debited against his account which is unfounded in law and common sense.
11. He therefore seeks for orders to prevent the Landlord from recovering the said amount against him.
12. By a second application dated 21st June 2021, the Tenant is seeking for orders to restrain the defendants from evicting or in any other manner interfering with his peaceable occupation and tenancy at the premises known as Donholm House no. 1 and that the O.C.S Buruburu ensures compliance.
13. On 6th May 2021, the Landlord served the Tenant with a notice to vacate the suit premises on grounds that he wished to convert it into a residential premises. The notice is marked GN1 and is attached to the Applicant’s supporting affidavit.
14. No other tenant of similar premises was issued with such notice.
15. Both applications have not been responded to by the Respondents and the tenant’s averments remain uncontroverted.
16. In regard to the said applications, the Applicant is only required to bring himself within the principles espoused in the case of GIELLA – VS- CASSMAN BROWN & CO. LTD (1973) EA 358.
17. There being no objection to the two applications, I find and hold that the Applicant has established a prima facie case.
18. I further hold that should the Tenant be evicted on the basis of the notice dated 6th May 2021 issued by the 2nd Defendant/Respondent, he stands to lose a source of livelihood without any legal justification.
19. This is moreso considering the fact that the said notice does not comply with section 4(2) of Cap. 301, Laws of Kenya and any eviction based on it would be an illegal eviction.
20. Failure to stop such a threatened eviction would be an abdication of duty by this tribunal which was established to inter-alia protect tenants of controlled tenancies from eviction by Landlords.
21. In the premises, I proceed to make the following orders in respect of the two applications:-
(a) The defendants/Respondents by themselves, agents, employees and servants are hereby restrained from evicting or in any other manner interfering with the Tenant’s peaceable occupation and use of the premises known as Donholm house no. 1.
(b) The defendants/Respondents are restrained from demanding or recovering the sum of Kshs.47,000/- allegedly incurred by the previous tenant from the Applicant/Tenant herein.
(c) The Applicant/Tenant has no obligation to settle arrears of rent (if any) incurred by the previous tenant.
(d) The OCS Buruburu Police Station shall ensure compliance with these orders.
(e) Costs of the two applications to the Tenant/Applicant.
It is so ordered.
DATED SIGNED & DELIVERED THIS 4TH DAY OF AUGUST 2021 VIRTUALLY.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
In the presence of:
Goche for Tenant/Applicant holding brief for Mr. Ndichu
No appearance for the Landlord.