[2022] KEBPRT 20 (KLR)
The court found that the landlord had properly served the tenant with a notice to terminate the controlled tenancy under section 4(2) of Cap 301, which was not challenged by the tenant as required under section 6. As a result, the notice became effective on 1st November 2021, and the tenancy was lawfully terminated....
Source-derived case information.
- Citation
- [2022] KEBPRT 20 (KLR)
- Parties
- Applicant: James Mwangi Muturi; Respondent: Joel Momanyi Mogaka
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E048 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Landlord's Application for Eviction and Distress for Rent
- Outcome
- Application allowed. Orders granted as prayed in prayers 2, 3, 4, and 5 of the application.
- Legal Topics
- Controlled Tenancy, Termination of Tenancy, Rent Arrears, Distress for Rent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mwangi Muturi
Applicant
Joel Momanyi Mogaka
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Landlord's Application for Eviction and Distress for Rent
Legal Issues
- 1 Whether the landlord is entitled to an order for eviction of the tenant for failure to file a reference against the notice to terminate tenancy.
- 2 Whether the landlord can lawfully levy distress for rent arrears and seek police assistance in enforcement.
Ratio Decidendi
The court found that the landlord had properly served the tenant with a notice to terminate the controlled tenancy under section 4(2) of Cap 301, which was not challenged by the tenant as required under section 6. As a result, the notice became effective on 1st November 2021, and the tenancy was lawfully terminated. The tenant did not deny being in rent arrears, and the landlord's evidence was uncontroverted. Consequently, the tribunal allowed the landlord's application for eviction, distress for rent, and police assistance in enforcement.
Court Disposition
Application allowed. Orders granted as prayed in prayers 2, 3, 4, and 5 of the application.
Orders
- The tenant shall vacate the premises known as Block 519/129 Njoro Town.
- The landlord is allowed to engage auctioneers to break into the premises and levy distress to recover rent arrears.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. E048 OF 2021 (NAKURU)
JAMES MWANGI MUTURI.......................................................LANDLORD/APPLICANT
VERSUS
JOEL MOMANYI MOGAKA......................................................TENANT/RESPONDENT
RULING
1. The Landlord’s application dated 23rd November 2021 seeks that the Tenant be ordered to vacate the premises known as Block 519/129 Njoro Town for failure to file a reference against the notice to terminate his tenancy dated 31st August 2021.
2. The Landlord also seeks to be allowed to engage auctioneers to break into the sit premises and levy distress to recover owed rent arrears.
3. The assistance of the OCS Njoro Police Station has also been sought in the enforcement of the orders herein.
4. I have perused the said notice of motion, the grounds upon which it is brought and the affidavit in support thereof. I have also read the affidavit of service filed by one Mr Solomon Wachira Njoroge and I am satisfied that the Respondent herein was properly served.
5. The notice to terminate tenancy herein is the one dated 31st August 2021. It expresses itself to take effect from 1st November 2021. It is a proper notice issued under section 4(2) of Cap 301. The Respondent/Tenant has not challenged the notice in any way, he has not filed a reference under section 6 of Cap 301 and the notice has therefore become effective from the date specified therein and in accordance with section 10 of Cap 301.
6. I therefore do find that the tenancy between the parties herein terminated on 1st November 2021. The Tenant has not denied being in rent arrears as demanded by the Applicant/Landlord. on the uncontroverted evidence of the Landlord, I will therefore allow the Landlord’s application dated 23rd November 2021 inter terms of prayers 2, 3, 4 and 5 of the said application.
HON. CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL
Ruling dated, signed and delivered virtually by Hon P. May (Vice Chair)this7th March 2022in the presence of Mr Muturi (Landlord)and in the absence of theTenant.
HON. P. MAY
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL