[2022] KEBPRT 40 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E061 OF 2021 (MOMBASA)

GEORGE OJIAMBO...............................................................TENANT/APPLICANT

VERSUS

GEOFREY MULEI C/O

MUTUNE GENERAL AGENCIES LTD..................LANDLORDS/RESPONDENTS

RULING

1. The Tenant’s/Applicant’s notice of motion dated 20th September 2021 seeks orders of injunction restraining the Respondents from interfering with the Tenant’s/Applicant’s occupation of shops at Changamwe, Mikanjuni – Mombasa County pending the inter partes hearing of the application. The Applicant also seeks an order that the OCS Jomvu Mikanjuni Police Station reinforces the orders issued by the Tribunal. Costs have also been sought.

2. I do note that the Applicant has sought orders pending the inter partes hearing of the application. Ordinarily, this order would be spent as the application has already been heard inter partes but the application having been filed by the Applicant in person, I will treat the prayer as though it was made pending the hearing of the reference.

3. The application is supported by the affidavit of George Ojiambo which I summarize as follows;

a. That the Tenant has been in the premises since2019 and has been paying his rent diligently.

b. That the Landlord has threatened with the assistance of goons to unlawfully evict the Tenant from the suit premises.

c. That on 7th September 2021, the Landlord served the Tenant with a one month backdated notice to quit the premises.

d. That the Tenant has not been served with a legal notice as required by the law.

4. The application is opposed. The Respondent has filed a replying affidavit which is basically to the effect;

a. That the Tenant is in rent arrears of Kshs 30,600/-.

b. That the Tenant is a nuisance and the Respondent has issued him with a notice to vacate the premises.

c. That the Tenant has not established a case for the grant of the orders of injunction he has sought.

d. That the Respondents are exercising their statutory right of distress under the Distress for Rent Act Cap 293of theLaws of Kenya.

5. The only issue that arises for determination is whether the Tenant is entitled to the orders sought in his application dated 20th September 2021.

6. The Tenant has stated that he has been in the suit premises since 2019 and he has paid his rent in advance. In support of this contention, he has annexed as exhibit GO – 2 a copy of his mpesa statement. The statement produced covers the period from 1st April 2021 to September 2021. The Landlord on his part has produced a statement of accounts which show that the Tenant has rent arrears in the sum of Kshs 30,600/-.

7. The mpesa statement produced by the Tenant is not clear and I am unable to decipher the same. It is important to point out here that it is the duty of a party who seeks to rely on a document in court to present a clear legible copy for reference by the court. Otherwise, the illegibility and lack of clarity of any such document will operate against the party that seeks to rely on it. I am in the circumstances constrained to go by the clear statement of account by the Respondent which is detailed. The Tenant has not challenged the Landlord’s statement of accounts in any material way.

8. The Tenant has complained that the Landlord has not issued to him the necessary legal notice to terminate the Tenant’s tenancy. The Respondent has admitted that he issued a notice to vacate to the Tenant who had become a nuisance. I think the notice the Landlord admits issuing is the one dated 1st August 2021. The said notice does not comply with the requirements of section 4(2) of Cap 301 which requires notices terminating tenancies to be in the prescribed form.

9. I find that the said notice is defective and of no effect. If the Landlord wishes to terminate the tenancy, then he ought to issue the proper notice provided for under section 4(2) of Cap 301.

10. I have already found that the Tenant is in rent arrears. The Landlord’s right to distress for rent is provided for under section 3(1) of Cap 323 which is in the following terms;

“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 rent service as is given by the Common Law of England in a similar case.”

11. The only requirement for the exercise of this right of distress is the existence of rent arrears. The Landlord in this case is therefore entitled to distress for the rent arrears and which exercise should not be confused with termination of tenancy which can only be commenced by the issuance of a valid notice to terminate tenancy under section 4(2) of Cap 301 in controlled tenancies.

12. I will in the circumstances restrain the Landlord from illegally terminating the Tenant’s tenancy while allowing the Landlord to distress for rent legally due. The costs of the application shall abide the outcome of the reference.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari (Chairman)this7th March 2022in the presence of Mr Mutei (Landlord)and in the absence of theTenant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL