[2021] KEBPRT 386 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 129 OF 2021 (NAIROBI)

JAMES NGUGI KAMAU.............................................TENANT/APPLICANT

VERSUS

DANIEL KIMANI NGURURI....................LANDLORD/1ST RESPONDENT

MWANZO PROPERTY MANAGEMENT.....AGENCY/2ND RESPONDENT

RULING

1. By a motion dated 4th February 2021, the Tenant/Applicant is seeking for orders to compel the Landlord to reconnect electricity power supply to the business premises and in default, the Tenant be authorized to reconnect the same with the assistance of City County Engineer and deduct costs thereof from future rent.

2. The Tenant is also seeking to compel the Landlord to provide water and toilet keys and an order of injunction to restrain the Landlord and the 2nd Respondent agent from interfering with his quiet occupation and lawful enjoyment of the suit premises.

3. The application is supported by the Tenant’s affidavit sworn on even date and the grounds on the face thereof.

4. The Tenant runs a business in the Respondent’s premises located at Kayole junction, shooters stage along Eastern bypass at a monthly rent of Kshs.12,000/- which was up to date at the time of filing the application.

5. The Respondents disconnected electricity power supply to the Tenant’s premises on a date which is not indicated in the pleadings contrary to Cap. 301 Laws of Kenya.

6. The Respondents have also refused to provide water and toilet keys in the business premises with the intention of evicting the Tenant by making it impossible to carry out business smoothly.

7. In response to the application, the 2nd Respondent director one Grace Wairimu Njonjo filed a replying affidavit sworn on 23rd February 2021 to oppose the application.

8. She deposes that the Applicant does not offer any essential services as prescribed by the Government regulations.

9. It is contended that the Applicant has not been paying his electricity bills in time and does not pay his rent in time and is to blame for his woes.

10. The Respondents contend that the Applicant has been interfering with his electricity connections which issue was pending before Kenya Power and Lighting Corporation and that action will be taken against him in due time.

11. It is contended that the Applicant had not paid rent for February 2021 and has no right to demand for essential services from the Landlord.

12. The 2nd Respondent deposes that the Tenant has never paid rent in time and that he is rude towards the caretaker and other Tenants whom he threatens and may vacate there from making the Landlord to incur loses.

13. As such it is the Respondent’s case that if the Tenant does not vacate the premises with immediate effect, the other tenants whom he threatens will vacate making the Landlord incur “grievous loses”.

14. The Tenant filed submissions but the Respondents did not file any.

15. I have considered the pleadings filed by both parties as well as the submissions filed by the Tenant.

16. The only issue for determination is whether the Tenant is entitled to the prayers sought in the application and secondly who is liable to pay costs of the application.

17. The Tenant’s submissions allude to a notice to terminate tenancy issued by the Landlord to the Tenant but the same has not been placed on record by either party. I shall therefore not consider the same.

18. It is submitted that one Grace Wairimu Njonjo has no authority to swear a replying affidavit on behalf of the Landlord since she is not a recognized agent for purposes of Order 9 Rule 2 of the Civil Procedure Rules.

19. The replying affidavit filed by Grace Wairimu Njonjo states that she is a director of Mwanzo Property Management Agency which is named as a second Respondent.

20. It is however not clear whether the 2nd Respondent is a Limited liability company or a business name but having been sued in the said name. I would assume that it was entitled to respond to the application through the directors or proprietors.

21. The replying affidavit states that the 2nd Respondent is the estate agent of the 1st Respondent. One would therefore tend to believe that having been sued in the instant proceedings was entitled to bring its defence as it did.

22. Article 260 of the Constitution of Kenya, 2010 defines the term “person” to include a company, association or other body of persons whether incorporated or uncorporated. It therefore does not matter whether the 2nd Respondent is a company or business name as by whichever name known is capable of being sued in line with the said definition.

23. I therefore hold that the said Grace Wairimu Njonjo was entitled to swear the replying affidavit as the estate agent of the 1st Respondent. In any event no further affidavit was sworn by the Applicant to controvert the fact that she had authority to do so. It would still have been superfluous to deny her capacity having dragged the name of the 2nd Respondent into this matter.

24. Although the Tenant’s submissions refer to a further affidavit, there is none in the court file and I shall therefore proceed to determine the matter in disregard of the contents of the alleged further affidavit.

25. Having considered the pleadings filed by both parties and the Tenant’s submissions, I make the following findings:

i. There is no denial by the Respondents that the Tenant’s electricity supply had been disconnected and that he had no access to water and toilet facilities.

ii. There is no evidence tendered by the Landlord or the agent to prove that the Tenant had failed to pay his rent and for other services in the demised premises to warrant denial of such services.

iii. The acts of the Respondents are clearly geared towards evicting the Tenant without adhering to the procedure laid down under Cap.301, Laws of Kenya which is untenable.

iv. There is no evidence that the Tenant has been interfering with his electricity connections or that there was any complaint/investigations pending with the service provider. He who alleges must prove.

v. The allegation of the Tenant’s rudeness to the caretaker and other Tenants is not supported by independent evidence. In any case, I doubt it can be a ground for termination without any criminal investigations to show that the Tenant has been creating disturbance in the demised premises.

vi. I have not seen the alleged notice of termination of tenancy and I believe that if it was served after institution of the instant proceedings, then the same ought to be subject matter of a separable Reference.

26. In the premises, I find and hold that the Tenant has brought himself within the principles espoused in the celebrated case of GIELLA – VS- CASSMAN BROWN & CO. LTD (1973) E.A 358 and make the following orders:-

a. Prayers 2,4 & 5 are hereby granted.

b. The Respondents are hereby ordered jointly and/or severally to reconnect electricity power supply to the Tenant’s business premises with immediate effect and in default, the Tenant is authorized to reconnect the same with the assistance of City County Engineer and recover the incurred costs from future rent pending hearing and determination of the case.

c. The Respondents shall grant the Tenant unrestricted access to the toilet facilities within the premises forthwith and in default the Tenant shall use reasonable means to access the said facilities during the pendency of this suit.

d. The costs of the application shall be met by the Respondents.

It is so ordered.

DATED, SIGNED & DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2021

Hon. Gakuhi Chege

Vice Chair

BUSINESS PREMISES RENT TRIBUNAL

Ruling delivered in the presence of:

Miss Oketch for Tenant/Applicant