[2021] KEBPRT 70 (KLR)
The Tribunal found that while both parties agreed to a temporary rent reduction due to the Covid-19 pandemic, the period and amount of reduction were disputed. The Tribunal resolved this by relying on the affidavits and correspondence, concluding that the rent was reduced by Kshs.10,000 per month for three months...
Source-derived case information.
- Citation
- [2021] KEBPRT 70 (KLR)
- Parties
- Applicant: James Mwangi; Respondent: Isaack Kuria t/a Waciru Commercial and Property Agencies
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 34 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory and Substantive Applications
- Outcome
- Application partly allowed; reassessment of rent dismissed; temporary injunction granted; each party to bear own costs.
- Legal Topics
- Controlled Tenancy, Rent Disputes, Covid19 Rent Waivers, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mwangi
Applicant
Isaack Kuria t/a Waciru Commercial and Property Agencies
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory and Substantive Applications
Legal Issues
- 1 Whether the tenant is entitled to an order restraining the landlord from increasing rent and for a fresh assessment of rent.
- 2 Whether the tenant is entitled to protection from eviction or harassment by the landlord.
- 3 Who is liable to pay the costs of the suit.
Ratio Decidendi
The Tribunal found that while both parties agreed to a temporary rent reduction due to the Covid-19 pandemic, the period and amount of reduction were disputed. The Tribunal resolved this by relying on the affidavits and correspondence, concluding that the rent was reduced by Kshs.10,000 per month for three months (December 2020, January and February 2021), after which the rent reverted to Kshs.50,000. The tenant was not entitled to a reassessment of rent as he had not served the required statutory notice under Section 4(3) of Cap. 301. The Tribunal also held that, pending reconciliation of accounts, the landlord was temporarily restrained from interfering with the tenant's occupation....
Court Disposition
Application partly allowed; reassessment of rent dismissed; temporary injunction granted; each party to bear own costs.
Orders
- The tenant's monthly rent is Kshs.50,000 except for December 2020, January and February 2021, when it was Kshs.40,000 as mutually agreed.
- Both parties to file statements of rent account for the relevant period within 30 days to establish any arrears.
Full Case Text
Judgment text and source record
55 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 34 OF 2021 (NAKURU)
JAMES MWANGI.....................................................................................APPLICANT/TENANT
VERSUS
ISAACK KURIA T/A
WACIRU COMMERCIAL AND PROPOERTY AGENCIS.....RESPONDENT/LANDLORD
RULING
1. By a motion dated 5th March 2021, the tenant moved this Tribunal seeking five (5) reliefs. Prayers 1, 2 and 4 were granted ex-parte.
2. Under prayer 3 of the application, the tenant has prayed that the landlord be stopped from increasing rent and that a fresh assessment of rent be undertaken by the Tribunal.
3. The application is supported by the tenant’s affidavit sworn on 5th March 2021 and the grounds on the face of the application wherein it is deposed that the tenant operates business in shop no. 3, block 5/11 Nakuru Town paying a monthly rent of Kshs.50,000/- as per annexture ‘JM1’.
4. Owing to Covid -19 pandemic and resultant economic hardship, a rent waiver was given by the landlord in the month of December 2020 from Kshs.50,000/- to Kshs.40,000/- per month.
5. However by a letter dated 2nd February 2021, the landlord indicated that the waiver was only Kshs.5000/- leaving the rent payable at Kshs.45,000/-. The letter is annexed as ‘JM1’ and limits the waiver to the months of December 2020, January 2021 and February 2021 only. From 1st March 2021, rent was to go back to Kshs.50,000/-.
6. As at 2nd February 2021, the letter states that the tenant owed Kshs.10,000/- being balance rent of Kshs.5000/- for January 2021 and Kshs.5000/- for May 2020. The letter clearly shows that rent was payable by 10th of every month.
7. The tenant complains that the landlord had refused to accept rent and required an order to compel him to do so. He also seeks for reassessment of rent.
8. The application is opposed through a replying affidavit of the Respondent sworn on 27th May 2021 wherein it is deposed that he reduced rent from Kshs.50,000/- to Kshs.40,000/- to cushion the tenant from impact of Covid-19 pandemic in terms of annexture ‘IK-1’.
9. The Respondent contends that the Applicant defaulted in payment of rent and was in arrears by the time he filed the case before this Tribunal. As such the Respondent prays for dismissal of the case.
10. According to annexture “1K1” the landlord states that the tenant was in arrears of Kshs.10,000/- for the month of January 2021, Kshs.45,000/- for February 2021 and Kshs.5000/- being arrears for May 2020.
11. On 15th July 2021, the Tribunal vacated the injunction order given on 12th March 2021 to enable the Landlord recover outstanding rent.
12. By a motion dated 5th August 2021, the tenant applied for review, variation and/or setting aside of the orders issued on 15th July 2021 and that the Landlord be ordered to stop increasing rent and do fresh reassessment of rent.
13. He attributes his failure to attend court on 15th July 2021 to network problem making it impossible for the Tribunal to hear him. He denies that he had not been paying rent for one year.
14. The said application is opposed by the landlord through a replying affidavit sworn on 3rd September 2021 denying that he was harassing or threatening to evict the tenant. He further denies increasing rent.
15. I am now required to determine the following issues:-
(a) Whether the tenant is entitled to the orders sought in the applications dated 5th March 2021 and 5th August 2021.
(b) Who is liable to pay costs of the suit?
16. It is not in dispute that the initial monthly rent agreed upon by both parties for the suit premises is Kshs.50,000/-. This amount was varied by mutual agreement in December 2020 to cushion the tenant from the effects of Covid-19 pandemic.
17. What is in dispute is the amount of reduction as the tenant deposes that it was reduced to Kshs.40,000/- while the letter marked “JM-1” annexed to the supporting affidavit sworn on 5th March 2021 states that the reduction was by Kshs.5,000/- for the months of December 2020, January and February 2021.
18. In the replying affidavit of the Respondent sworn on 27th May 2021 at paragraph 4, he deposes that he reduced rent from Kshs.50,000/- to Kshs.40,000/- to cushion the tenant from impact of Covid -19 pandemic. The period of reduction is not given.
19. In the replying affidavit sworn on 3rd September 2021, the landlord deposes that he reduced rent from Kshs.50,000/- to Kshs.45,000/- to cushion the tenant from Covid-19 pandemic.
20. In view of the dispute relating to the amount of reduction, I shall rely on the contents of the initial affidavits by both parties where they both agree that the reduction was by a sum of Kshs.10,000/-. In regard to the period of reduction, I shall go by the landlord’s affidavit of 27th May 2021 in finding that the same was for a period of three (3) months. The tenant shall therefore be credited with Kshs.30,000/- being reduced rent for the months of December 2020, January and February 2021.
21. In regard to whether the tenant is entitled to reassessment of rent, I find that he has not served notice of alteration of terms of tenancy in terms of Section 4(3) of Cap. 301 Laws of Kenya which provides as follows:-
“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”
22. Given the dispute arising from the amount payable and the period of reduction of rent granted by the landlord, I find that the tenant was entitled to seek protection from this Tribunal.
23. I have perused the reference dated February 2021 filed herein on 11th March 2021 which is to the following effect:-
“That the landlord has refused to accept rent amounting to Kshs.50,000/-. That I pray the court be pleased to restrain the landlord from harassment and evicting the tenant pending hearing and determination of the matter”.
24. It is my considered view that the reference raises the same issues as the application and as such need not go to main hearing. Consequently, this ruling shall apply to the said reference.
25. In view of the foregoing analysis, the following orders commend to me:-
(a) The tenant’s monthly rent is Kshs.50,000/- save for the months of December 2020, January and February 2021 which was Kshs.40,000/- as agreed mutually by both parties.
(b) Both parties shall file statements of rent account for the relevant period to establish if any rent is owing as arrears within the next Thirty (30) days hereof based on order (a) above.
(c) The prayer for reassessment of rent is hereby dismissed on account of failure to comply with section 4 (3) of Cap. 301, Laws of Kenya.
(d) Pending compliance with order (b) above, there shall be a temporary injunction against levying distress or any interference with the tenant’s peaceful occupation of the premises by the landlord.
(e) Each party shall meet own costs of the application and reference.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF DECEMBER 2021.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
In the presence of:
Mr. Njoroge holding brief for Mr. Gatitu for Applicant/Tenant
Mr. Shelmith Kuria for the Landlord.
Further order:Further mention on 4/2/2022 to see if parties have reconciled the rent account.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL