[2021] KEBPRT 164 (KLR)
The tribunal found that the landlord failed to attend court or provide any evidence in support of the notice to terminate the tenancy. The tenant's evidence, which was unchallenged, established that there were no rent arrears and that the landlord had acted in a manner inconsistent with the tenant's rights,...
Source-derived case information.
- Citation
- [2021] KEBPRT 164 (KLR)
- Parties
- Landlord: Halid Musa Ojiambo; Tenant: Bonventure Imbayi; Tenant: Annet Wafula
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E047 of 2021
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- Tenant's reference allowed; landlord's notice dismissed; injunction granted against landlord; costs awarded to tenant.
- Legal Topics
- Controlled Tenancy, Termination of Tenancy, Rent Arrears, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Halid Musa Ojiambo
Landlord
Bonventure Imbayi
Tenant
Annet Wafula
Tenant
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the landlord's notice to terminate the tenancy was valid and enforceable.
- 2 Whether the tenant was in rent arrears as alleged by the landlord.
- 3 Whether the tenant is entitled to protection from eviction and interference by the landlord.
Ratio Decidendi
The tribunal found that the landlord failed to attend court or provide any evidence in support of the notice to terminate the tenancy. The tenant's evidence, which was unchallenged, established that there were no rent arrears and that the landlord had acted in a manner inconsistent with the tenant's rights, including locking the premises. In the absence of any credible evidence from the landlord and in light of the tenant's consistent testimony, the tribunal held that the landlord's notice was of no effect, the tenant's reference was allowed, and the landlord was injuncted from interfering with the tenant's possession of the premises.
Court Disposition
Tenant's reference allowed; landlord's notice dismissed; injunction granted against landlord; costs awarded to tenant.
Orders
- The landlord's notice dated 1st April 2021 is of no effect.
- The tenant's reference dated 28th April 2021 is allowed.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
TRIBUNAL CASE NO E047 OF 2021 (KAKAMEGA)
HALID MUSA OJIAMBO.................LANDLORD
VERSUS
BONVENTURE IMBAYI
ANNET WAFULA................................TENANTS
JUDGEMENT
1. The Landlord’s tenancy notice in this matter is the one dated 1st April 2021. The grounds upon which termination of tenancy is sought are that;
“The Tenant has refused to pay rent. She has rent arrears of Kshs 57,000. The Landlord sought orders that the Tenant pays the rent and vacates the suit premises and also sought police assistance in the enforcement of the orders”.
2. In opposition to the said notice the Tenant filed a reference dated 28th April 2021. The same came up for hearing on 28th October 2021, only the Tenant attended court. Mr Bonventure Imbai testified on behalf of the Tenant and his evidence was to the effect;
a. That the Tenant Annet Wafula is his wife and together they run a shop at the suit premises.
b. That their initial Landlord was one Mr Ading’o the father to the current Landlord Halid, Musa Ojiambo.
c. That they took up the tenancy on or about October 2016 and paid Kshs 84,000/- being a one year’s rent at the rate of Kshs 7,000/- per month.
d.That during the covid pandemic, the rent was mutually reduced to Kshs 5,000/-.
e. That the initial Landlord passed on in 2019 and Halid Musa took over the premises as the Landlord.
f. That the said Musa has been receiving rent in bits and not issuing receipts.
g. That the problems begun when the Tenant failed to pay the Landlord Khs 15,000/- in lump sum leading to the Tenant to seek an alternative Landlord who wanted to start a chemist in the same premises.
h. That on 3rd March 2021 the Landlord locked the premises. He failed to open the same even after being requested to do so by the officers from the Ministry of Housing and the BPRT.
i. That the Tenant broke into the premises on the advice of the OCS Busia Police Station and has peacefully carried on her business till now.
j. That the Tenant does not owe the Landlord any rent arrears.
k. That the Tenant now seeks the protection of the Tribunal.
3. The evidence of the Tenant is uncontroverted. I have no reason not to believe the same. The Landlord has not attended court to argue his notice which is opposed in any event. In the absence of evidence in support of the notice and in view of the Tenant’s unchallenged evidence, I make the following orders;
a. That the Landlord’s notice dated 1st April 2021 shall be of no effect.
b. The Tenant’s reference dated28th April 2021 is hereby allowed.
c. The Landlord is hereby injuncted from in any manner interfering with the Tenant’s quiet possession and use of the suit premises.
d. The Tenant shall have the costs of the reference.
HON CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL
JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 28TH APRIL 2021 IN THE PRESENCE OF THE TENANT AND IN THE ABSENCE OF THE LANDLORD.
HON CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL