[2022] KEBPRT 255 (KLR)

Gichui v 4SB Investment Limited & another (Tribunal Case Miscellaneous E121 of 2022) [2022] KEBPRT 255 (KLR) (Civ) (15 July 2022) (Ruling)

Neutral citation: [2022] KEBPRT 255 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case Miscellaneous E121 of 2022

P May, Vice Chair

July 15, 2022

Between

James Gichui

Applicant

and

4SB Investment Limited

1st Respondent

Property Boutique (E. A ) Limited

2nd Respondent

Ruling

1. The application before me is the tenant’s notice of motion dated February 3, 2022 which sought a plethora of orders against the landlord. The tenant sought the protection of the tribunal against an imminent eviction. He further prayed that the landlord should be ordered to reconnect the water and provide an alternative power source to the demised premises.

2. The application is premised on the grounds set forth on the face of the application and those enumerated on the supporting affidavit sworn on even date. The same can be summarized as follows:

3. The tenant contends that the landlord had disconnected the water and failed to provide alternative power source to the demised premises. He further states that the landlord while acting with sheer malice issued an irregular 30 day notice threatening to evict him. He decried the said notice noting that he had invested heavily on the demised premises thus evicting him was going to be highly prejudicial. He thus prayed that the application be allowed as sought.

4. The application was placed before the honourable tribunal for directions on February 4, 2022 whereby interim orders were issued in favour of the tenant pending the inter partes hearing. The tenant was ordered to serve the application.

5. The application has been opposed vide the detailed replying affidavit sworn by a representative of the respondent on February 18, 2022. The landlord urged the tribunal to set aside the orders issued as the applicant had perpetually refused to pay rent as and when it fell due.

6. It was the landlord’s assertion that the application is a non- starter and devoid of merit. The landlord further refuted the claims that it had disconnected the water supply stating that they were not a water supply provider thus the claims were misguided.

7. In response to the issue of disconnecting electricity supply, the landlord was steadfast in stating that they were not involved in the provision of electricity.

8. The landlord maintains that the tenant’s admission of being in rent arrears while trying to take cover under the excuse of Covid 19 without offering any plausible payment plan is spiteful and should never be entertained. In the end the landlord urged the tribunal to dismiss the application as it had no feet to stand on.

9. The landlord has further raised the issue of the failure by the tenant to file the relevant pleadings to accompany the application.

10. The parties elected to canvass the application by way of written submissions. At the time of writing this ruling the tenant had not tendered their submissions.

11. I will proceed to determine the matter nonetheless as their previous pleadings are on record.

12. The issues for determination are fairly straightforward. The applicant has invited the Tribunal to make a determination on the following issues:a.Whether the landlord should be ordered to reconnect the water supply and provide an alternative power supply?b.Whether prayer 2 of the application has meritc.Costs

13. On the first issue, the applicant contends that the landlord had disconnected their water supply. The only defence that the landlord has proferred against this was that they were not the provider for the amenity. Despite taking numerous acres of paragraphs to point me to numerous authorities in support of their position, they failed to prove to the Tribunal how the tenant was to get water supply at the demised premises and the responsible authority. The dispute before the tribunal is largely centered on this issue. I believe the landlord ought to have addressed the same in a more incisive manner rather than being defensive. I am aware of the orders issued on February 4, 2022. The tenant did not report back on whether the same were complied with. I will however grant the order for reconnection of the water supply provided the same shall be done within the purview of the regulations set out by the service provider.

14. I will now turn to the question of provision of an alternative power supply. The landlord has pointed me to the various provisions of the Energy Act including section 160 (1)A. The tenant has failed to give any documentation in support of their position pointing to frustration in their application or use of electricity. The tribunal cannot make a conclusive decision on the same.

15. On the second issue on whether the tenant should be granted an order of temporary injunction. The same is closely tied with the process of terminating the tenancy between the parties. The procedure for terminating controlled tenancy is now well settled and must be done within the demarcation laid out under section 4 of cap301. The tenancy relationship cannot therefore be terminated without following the laid down procedure. The tenant shall therefore continue enjoying possession unless otherwise lawfully removed from the demised premises.

16. In the end, I shall issue the following orders:a.The application is allowed in terms of prayer 3 and 5 of the notice of motion dated February 3, 2022. b.Each party shall bear its own costs.

17. Before I pen off, it is prudent to note that this ruling has substantially dealt with the issues raised in the reference. The same is therefore settled in the terms as in 16 above.It is so ordered.

RULING SIGNED, DATED AND DELIVERED THIS 15TH DAY OF JULY 2022. HON. P. MAYVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL