[2021] KEBPRT 66 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 73 OF 2021 (NAIROBI)

GRACE WANJIRU KARIMONI.................................TENANT/APPLICANT

VERSUS

MONICA MUKUHI KHIRRECU...............LANDLORD/1ST RESPONDENT

EUNIKEM CONSULTANTS KENYA........LANDLORD/2ND RESPONDENT

RULING

1. The Tenant’s/Applicant’s notice of motion dated 25th January 2021 seeks the following orders;

a. That the Landlord is restrained from in any manner interfering with the Tenant’s/Applicant’s quiet possession of the suit premises located on L.R. No KJD/Kaputei North/69174 (Monachi House, shop No 2) pending the hearing and determination of the application and complaint and/or further orders of the Tribunal.

b. That an order be and is hereby issued for the suit premises aforesaid to be valued to determine the rent payable to the Landlord/Respondent.

c. That the OCS, Kitengela Police Station do assist in compliance of the court orders.

d. Costs.

2. The application is supported by the affidavit of Grace Wanjiru Karimoni, I have read the same and I proceed to summarize it as follows;

a. That the Applicant is a protected Tenant.

b. That the Respondents on 21st January 2021 issued the Applicant with a demand letter for non-existent rent and threatened to carry away the Tenant’s goods.

c. That the Landlord has also issued the Tenant with an illegal notice to increase rent dated 9th January 2021.

d. That no justification has been advanced for the increment of rent as the premises is in a deplorable state.

e. That the building has no water or electricity connection.

f. That the premises ought not to attract any rent from March 2020 to October 2020 due to the Government closure or ban due to covid.

g. That the Tenant is up to date with her rent payments.

h. That in March 2020, the Landlord promised not to charge rent for the months of March, April and May 2020 due to covid closures.

i. That in May 2020, the parties herein agreed that the Tenant would pay half rent during the covid period.

j. That it is now untenable for the Landlord to demand rent backdated to 2018.

3. The application is opposed by the 1st Respondents replying affidavit sworn on (undated) filed on 9th March 2021 and which I summarize as follows;

a. That the Applicant, a Tenant of the 1st Respondent faithfully paid her rent of Kshs 35,500/- prior to covid as evidenced by the records of 2018 and 2019.

b. That on 7th May 2020, the Tenant wrote to the Respondent requesting that rent be halved with a promise to make partial payments to clear their debt when normalcy resumed.

c. That the Landlord accommodated the request but the Tenant paid Kshs 18,000, instead of Kshs 19,250/- for the months of June, July and August.

d. That the Tenant did not pay rent for the months of October and September 2020 but resumed the payment of Kshs 18,000 in the month of Novemberand December 2020.

e. That on 27th January 2021, the Landlord issued a demand for rent for the sum of Kshs 297,500/-.

f. That the Respondent denies the illegal notice to increase rent.

g. That the Respondent is a stranger to the allegation that the premises is in a deplorable state and further that the premises does not have electricity and water.

h. That despite the bar’s closure between March and October 2020, the Tenant was using an off licence wines and spirits business in the premises.

i. That the conversation not to pay rent for the months of March, Apriland May 2020 was not so. It was only to deffer the payment to later months when the Tenant was in a position to pay.

4. The Tenant’s further affidavit sworn on 12th April 2021 may be summarized as follows;

a. That the Tenant is a stranger to the document annexed as exhibit MM3 at paragraph 6 of the Respondent’s replying affidavit.

b. That the agreed half rent was Kshs 18,000/= which the Tenant to paying to date.

c. That the rent arrears of Kshs 115,000/- is denied by the Tenant.

d. That the premises electricity was disconnected due to the outstanding bill of Kshs 800,000/- accumulated by one George Nanakwa.

e. That the rent for October 2020 is paid.

f. That whereas paragraph 10 of the replying affidavits makes reference to the sum of Kshs 297,500/- the corresponding annexture alleges arrears of Kshs 234,600/-.

g. That the Tenant is not in any verifiable known arrears.

h. That the Respondent’s exhibit MMK 7 confirms that the premises have no water.

i. That the Tenant has confirmed to pay rent after the institution of her complaint.

j. That the Tenant prays that the rent payable be assessed.

5. The parties herein have filed their written submissions. The Tenant’s submissions may be summarized as follows;

a. That the Tenant is not in any rent arrears.

b. That the only channel for the Respondent to have followed is to approach the Tribunal to levy distress for rent.

c. That the 2nd Respondent is the Landlord’s agent.

d. That the Landlord has served an illegal notice to increase rent.

e. That the Tribunal ought to send a valuer to determine the rightful rent payable.

f. That no justification has been advanced for the increment of rent.

g. That the period of March 2020 to October 2020 ought not to attract any rent, bars having been closed on Government orders.

h. That the Tenant’s complaint is not about rent arrears but unjustified rent increment from Kshs 38,500 to Kshs 45,000/-.

6. The Respondent’s submissions may also be summarized as follows;

a. That the Tenant failed to pay rent for the months of March, April and May 2020.

b. That the allegations of service of an illegal rent increment notice is a fallacy.

c. That the distress for rent is an inherent right of a Landlord under the Distress for Rent Act. The issue of increment of rent on a ground for illegal distress is immaterial.

d. That the Tenant continues to carry out her business in the suit premises in spite of her complaints as to the inhabitability of the said premises, she has a choice to move out.

e. That the request for valuation is an afterthought.

f. That even after the covid restrictions were lifted, the Tenant/Applicant has declined to revert to the agreed rent of Kshs 38,500/-.

g. That the Tenant be ordered to pay Kshs 297,500/- and all backdated arrears since the commencement of the suit.

7. The issues that arise for determination from the above summary of the respective parties’ cases are, in my humble view, the following;

a. Whether the Respondent/Landlord is entitled to levy distress for rent as threatened in the letter from the 2nd Respondent dated 21st January 2021.

b. Whether the letter dated 9th January 2021 by the 2nd Respondent amounted to an illegal increase of rent.

c. Whether the Tenant/Applicant is entitled to the orders sought in his application dated 25th January 2021.

8. On issue (a);

a. The 2nd Respondent by their letter dated 21st January 2021 addressed to the Tenant demanded the payment of Kshs 297,500/- being rent arrears failure to which the 2nd Respondent would instruct auctioneers to levy distress against the Tenant/Applicant. It is this sum that is at the center of the dispute herein. What requires to be determined is whether the sum is clearly owing and therefore recoverable from the Tenant. The Landlord’s right to levy distress for rent is anchored in section 3 of Cap 296 which is in the following terms;

(3) Right of distress;

Subject to the provisions of the Act and any other written law, any person having any rent or rent service in arrear 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.

b. It is clear from the above provision that there must be rent in arrears for the right of the Landlord to crystalize. The rent arrears in my view must be clear and free from controversy. Being in arrear means that the amount due is ascertained, due and unpaid, otherwise the right to distrain would not be available (see Kakamega HCC No 10 of 2018, Royal Gardens Hospital Vs Ebrahim Omenyi Ambwere & Another at paragraph 10 of the decision).

c. The rent dispute between the parties herein seems to proceed from the year 2020 onwards. This is clear from the averments of the 1st Respondent at paragraph 5 of the affidavit where she states;

“That before the covid 19 pandemic, the Applicant/Tenant had faithfully and dutifully been paying Kshs 38,500/- as the agreed rent as envinced by the 2018 and 2019 records annexed and marked MMK 1 and MMK 2. ”

d. It would also appear from the pleadings that the Tenant made a request to pay half of the rent from May 2020, by his letter of 7th May 2020. The Landlord accepted this request from the Tenant. The Tenant alludes to the fact that the Landlord agreed to waive the rent for the months of March, April and May 2020 due to premature closure of bars due to covid. The Landlord has denied this concession. Even if the Landlord was to have admitted the concession, the Tenant would still have had to pay the rent for January and February in the full.

e. If, and which is accepted, the Landlord gave the Tenant the concession to pay half rent from May 2020, what amounted to half rent and for how long was the concession to remain in force? I pose this question because the Tenant at paragraph 9 of his further affidavit states;

9 – that I admit to have agreed to pay half rent as per paragraph seven of the replying affidavit. However, the 1st Respondent and myself agreed the amount at Kshs 18,000/- which I have been paying to date (1st April 2021).

f. The Respondent/Landlady in her submissions also states;

“Even after the restrictions were lifted, the Tenant/Applicant declined to revert to the provisions agreed rent of Kshs 38,500…” The letter which gave rise to this state of affairs is the one by the Tenant dated 7th May 2020.

It is in the following terms;

Dear Landlady,

You are obviously aware of the severe problems in the National economy and the struggling retail industry due to this pandemic. I would like to bring to your attention that my bar remain closed as per the government directive hence am not able to pay rent. I hereby request you to consider reducing the rent by half which I promise to make partial payments to clear my debt when things get back to normal. Thanks in advance.

Yours sincerely

Grace Karimoni

g. This is the request which was granted by the 1st Respondent. As the concession by the Landlord was not put in writing, the assumption would then be that he conceded to the fullness of the request. The reference by the Tenant to “making partial payments to clear his debt” is ambiguous. It is not clear whether the Tenant was referring to an earlier debt before he made the request or to the balance of the rent after he made half rent payments. I am unable to guess what the Tenant may have intended by her above statement.

h. That both parties agree that the concession was to remain in force until the covid situation normalized is not in dispute. The normalization of the covid situation has not been addressed in the pleadings and submissions of both parties. I am therefore not able to determine the period for the normalization as none has been suggested by the parties. This lack of clarity as to the debt payable by the Tenant and the period during which the Tenant was entitled to pay half rent, and whether or not the other half rent for March, April and May 2020 was recoverable from the Tenant or waived, all make it difficult to say with certainty what amount of rent was in arrears as at the time the Landlord threatened to levy distress against the Tenant. I therefore find that it would be unsafe to allow the Landlord to levy distress against the Tenant until the amount due in arrear is determined and is made certain.

i. On Issue (b)

a. The letter dated 9th January 2021 by the 2nd Respondent at paragraph 2 is in the following terms;

“We have been instructed by the proprietor of the above premises to notify you that your house rent has been increased to Kshs 45,000/- effective 1st April 2021. ”

b. For the 1st Respondent to increase the rent payable by the Tenant to Kshs 45,000/- the 1st Respondent ought to have issued a notice for the increment of the said rent under section 4 (2) of Cap 301 which is in the following terms;

“A Landlord who wishes to terminate a controlled tenancy or to alter to the detriment of the Tenant any term or condition in or right or service enjoyed by the Tenant under such a tenancy shall give notice in that behalf to the Tenant in the prescribed form.”

c. I find the increment of rent to be an alteration to the terms of the tenancy between the parties herein and the same is detrimental to the Tenant. Consequently, the Respondent/Landlord was obligated under the law to issue the notice to increase the rent under section 4(2) of Cap 301. The notice by the 1st Respondent’s agent, the 2nd Respondent does not conform to section 4(2) and (5) of Cap 301and the same is therefore invalid and of no legal effect.

j. On issue (c)

a. From the reasons advanced above, I do not find any difficulty granting prayer 1 of the Tenant’s application. The Tenant has however made an application for the grant of an order that the suit premises be valued and the rent payable be assessed.

Section 4(3) of Cap 301 is in the following terms;

“A Tenant who wishes to obtain a reassessment of the rent of a controlled tenancy or the alteration of any term or condition in or of any right or service enjoyed by him under such a tenancy shall give notice in that behalf to the Landlord in the prescribed form.”

b. The Tenant cannot seek a valuation with view to the assessment of rent payable without first issuing to the Landlord the notice envisaged under section 4(3) above. The prayer for the assessment of rent is therefore without basis and the same is declined.

k. In conclusion, I grant prayer 1, 3 and 4 of the Tenant’s application dated 25th January 2021.

l. The reference will be heard on 25th January 2022.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered by Hon Cyprian Mugambi Nguthari this 5thday of November 2021 in the presence of Mr Gakunju for theLandlordand Mr Anga for the Tenant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL