[2022] KEBPRT 736 (KLR)

Jambo Caterers Limited v Care for Care Limited & another (Tribunal Case E663 of 2022) [2022] KEBPRT 736 (KLR) (26 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 736 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E663 of 2022

Andrew Muma, Vice Chair

September 26, 2022

Between

Jambo Caterers Limited

Tenant

and

Care for Care Limited

1st Landlord

Joseph Kimani

2nd Landlord

Ruling

Parties and their Representatives 1. The Applicant is the Tenant of the suit premises in this matter, who runs a bar and restaurant situated on the parcel of land known as Grant No. L.R 21905 at Industrial Area (hereinafter the “Tenant”).

2. The firm of Otwal & Manwa Associates Advocates represents the Applicant in this matter.

3. The Respondent is the landlord and owner of the suit premises Grant No. L.R. 21905 at Industrial Area rented out to the tenant (hereinafter the “Landlord”).

4. The firm of Wilfred K. Babu & Co. Advocates represents the Respondent in this matter.

The Dispute Background 5. The Tenant and Landlord entered into lease agreements dated 23rd December 2013, 8th January 2014 and 10th January 2014 respectively. Pursuant to the three aforesaid agreements, the Landlord agreed to lease spaces in the suit premises to the Tenant, at a total monthly rent of Kenya Shillings One hundred and five thousand (Kshs. 105,000. 00).

6. The present dispute concerns the rented space pursuant to the lease agreement dated 10th January 2014. The Tenant issued the Landlord with a demand letter dated 24th March 2020, disputing the Landlord’s allegation that the Tenant was in electricity arrears. Further, the Tenant demanded, inter alia, that the Landlord immediately reconnects the electricity supply to the Tenant’s premises and assumes responsibility for the electricity arrears cited by the Kenya Power and Lighting Company.

7. On 9th November 2021, the Tenant moved this Tribunal by way of reference and the complaint therein concerned the Landlord’s termination of supply of electricity to the suit property and closure of access to the main switch.

8. Further, on 9th November 2021, the Tenant filed a notice of motion application under certificate of urgency under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act(Cap 301). The Tenant sought among other orders, that pending the hearing and determination of the application herein, the Respondent/employees/servants be compelled to switch on the electricity supply from the main switch and/or open the business premises unconditionally and allow the Tenant to continue occupying the business premises and carry out her business without any threats and/or conditions.

9. On 15th November 2021, the Tribunal ordered inter alia, that:a.The Tenant/Applicant continue to occupy the business premises and a stay of any form or intention of eviction be granted pending the hearing of the application inter partes.b.The Respondents and/or their agents switch on the electricity supply from the main switch and/or open the business premises unconditionally and allow the Tenant/Applicant to continue occupying the business premises and carry out her business without any threats and/or conditions pending the hearing the application inter partes.c.The Respondents whether by themselves, their servants and/or agents or otherwise are restrained from entering, harassing and interfering with the Tenant/Applicant’s quiet possession of the said premises pending the hearing of the application inter partes.

Jurisdiction 10. The jurisdiction of this Tribunal is not in dispute.

The Tenant/Applicant’s Claim 11. The Tenant filed a notice of motion application under certificate of urgency and supporting affidavit dated 9th November 2021 which pleadings form the basis of this claim.

12. The Tenant obtained restraining orders as against the Respondent on 15th November 2021 restraining the Respondent from unlawfully terminating the tenancy and evicting the Tenant pending the hearing of the application inter partes.

13. The Tenant filed written submissions dated 27th June 2022.

The Landlord/Respondent’s Claim 14. The Respondent filed a notice of motion application and supporting affidavit dated 31st March 2022. Further, he filed submissions dated 27th June 2022.

15. The matter was fixed for ruling on 12th August 2022.

Issues For Determination 16. The main issue raised for determination is whether the Respondent in failing to reconnect electricity supply acted lawfully.

Analysis and Determination Whether the Landlord unlawfully disconnected electricity supply within the Tenant’s premises 17. Before determining the issue whether the Tenant is liable to settle the outstanding rent arrears, this Tribunal makes reference to the Tenant’s notice of motion application dated 9th November 2021 in which it sought, inter alia, the following orders:a.an order be and is hereby issued allowing the Applicant/Tenant to continue occupying the business premises and there be a stay of any form or intention of eviction;b.an order be and is hereby issued compelling the Respondents and/or their agents/servants to switch on the electricity supply from the main switch and/or open the business premises unconditionally and allow the Applicant/Tenant to continue occupying the business premises and carry out her business without any threats and/or conditions.

18. In response to the said application, the Landlord filed a replying affidavit dated 6th December 2021, the Landlord deponed that the Tenant is in rent arrears of Kshs. 1,350,000. 00. Further, the Landlord averred that Kenya Power and Lighting Company (KPLC) inspected the suit premises on 19th March 2019 and switched off power supply, demanding that the Tenant settle an outstanding electricity bill of Kshs. 3,313,970. 00. On 6th November 2021, the Landlord averred that following inspection of the Tenant’s meters, he learned that the Tenant’s electricity supply was unmetered. Consequently, the Landlord engaged an electrician to remove the illegal connection, however, this Tribunal ordered that the same be re-installed and the Landlord complied.

19. On 11th January 2022, the Tenant filed a further affidavit in which she claimed that the contentious issue did not concern rent and asserted that they had been duly paying rent. Contrarily, the Tenant deponed that the main issue concerned unlawful disconnection of electricity.

20. From the foregoing facts, this Tribunal acknowledges the Landlord’s letter to KPLC “Re: Meter No. 14170140256” in which the Landlord made attempts to plead with KPLC regarding the alleged electricity bill of Kshs. 3,313,970. 00 owed by the Tenant. Particularly, the Landlord requested KPLC to review the debit and to claim a reasonable amount.

21. In light of the above, I find that the Respondent cannot be held liable for unlawfully disconnecting electricity supply as it is evident from the facts that Kenya Power and Lighting Company and not the Landlord who disconnected electricity supply within the Tenant’s premises. As such, the Tenant’s claim fails in this respect. In fact, this Tribunal finds it rather ironic that the Landlord should plead with KPLC to review the electricity bill arrears of Kshs. 3,313,700. 00 and proceed to cut off power supply within the Tenant’s rented premises.

22. Concerning the issue of rent arrears, the Tenant shall be required to provide further evidence to prove that it does not owe the Landlord the alleged outstanding arrears of Kshs. 1,350,000. 00.

23. Consequently, I find that the Landlord is not liable for disconnecting electricity supply within the Tenant’s rented space.

Orders 24. This Tribunal makes the following orders. The upshot is that the Tenant/Applicant’s Notice of Motion application dated 9th November 2021 is hereby dismissed on the following terms:a.The claim is for power; evidence produced shows if Tenant is Kenya Power and Lighting Company (KPLC) not Landlord.b.The Tribunal has no jurisdiction on issues between Tenants and 3rd parties in this event. KPLC-Right form should be moved. Interim Landlord to assist the Tenant to sort issues with KPLC as power remains theirs to provide in the agreement.c.Issue of arrears-Tenant ought to pay rent as and when it falls due, failure to which Landlord is at liberty to distress and/or apply to the Tribunal for reliefs available to him under Cap. 301. d.The Tenant’s application and reference dismissed with no order as to costs.

HON. A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA (VICE CHAIR) THIS 26TH DAY OF SEPTEMBER, 2022 IN THE PRESENCE OF CHUMO HOLDING BRIEF FOR MANWA FOR THE TENANT AND IN THE ABSENCE OF THE LANDLORD.HON. A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL