[2022] KEBPRT 887 (KLR)

Joel Kibe t/a Bekira Enterprises Ltd & another v Jeremiah Kongo t/a Kongo Kihara Foundation (Tribunal Case E211 of 2022) [2022] KEBPRT 887 (KLR) (Civ) (28 December 2022) (Ruling)

Neutral citation: [2022] KEBPRT 887 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E211 of 2022

Gakuhi Chege, Vice Chair

December 28, 2022

Between

Joel Kibe t/a Bekira Enterprises Ltd

Landlord

and

Anthony Macharia

Agent

and

Jeremiah Kongo t/a Kongo Kihara Foundation

Tenant

Ruling

1. On December 16, 2021, the landlord herein issued a tenancy notice upon the tenant seeking to terminate its tenancy over a business premises situate on plot no 4951/5/IV, Sawa House, Thika Town with effect from March 1, 2022 on grounds that he desired to occupy the premises for his own use for a period of not less than one year.

2. Through a reference dated February 26, 2022, the tenant moved to this tribunal under section 12(4) of cap 301, laws of Kenya complaining that the landlord had illegally and without the requisite notices verbally increased rent from kshs 5,000/- to kshs 10,000/- and had been arbitrarily locking the tenant’s premises on numerous occasions without due regard to the law. The tenant further complained that the notice served on the tenant is not justified and is made in bad faith and out of malice and was intended to evict it on instigation of the agents.

3. The tenant simultaneously filed a motion of even date seeking for restraining orders against the landlord from interfering with its quiet enjoyment and use of Room 13 plot no 4951/5/IV, Sawa House. Interim orders were given on February 28, 2022 pending hearing inter partes on March 14, 2022.

4. In the supporting affidavit of Jeremiah Kongo Kihara, it is deposed that the tenancy commenced on December 8, 2016 in the suit premises. It is admitted that a termination notice marked ‘exhibit 1’ was served upon the tenant.

5. It is further deposed that sometimes in November 2021, the landlord’s agent had illegally and without justification verbally increased rent from kshs 5,000/- to kshs 10,000/- and upon request by the tenant to be served with a proper notice for rent increment, the landlord served the impugned notice to terminate the tenancy. The tenant contends that the said notice is malicious and intended to illegally evict it from the premises.

6. According to the tenant, the landlord has no intention to use the premises but to evict it as there were many vacant rooms in the same building which he can use for the intended purpose.

7. The tenant contends that there was bad blood between it and the landlord’s caretaker known as Ruth who was in the habit of locking the business premises arbitrarily without any justifiable reason. A number of such instances are cited in the supporting affidavit.

8. Despite the tenant making rent deposits into the bank, the landlord had failed to issue receipts as per exhibit 2. As a result, the tenant deposes that its right to tenancy without interruption was being infringed and unless restrained by this tribunal may lead to eviction. This would cause irreparable loss and damage. It was thus in the interest of justice that the orders sought be granted to prevent eminent loss to the tenant.

9. The application is opposed through the replying affidavit of the landlord sworn on March 2, 2022 wherein it is admitted that the tenant was served with a notice to vacate expressed to take effect on March 1, 2022. He denies giving notice to increase rent.

10. The landlord denies that his agent, caretaker and staff locked the tenant’s business premises as no evidence or report to relevant authority has been exhibited. It is also denied that rent receipts are not issued and instead the landlord deposes that they are always issued.

11. According to the landlord, he issued the tenant with a 2 months’ notice and it did not oppose the notice as required by law.

12. The landlord therefore contends that the tenant should be ordered to give vacant possession as he wishes to use the premises for a period of not less than twelve (12) months.

13. On March 3, 2022, the landlord moved this tribunal through a motion seeking vacant possession of the suit premises on the basis of the tenancy notice dated December 16, 2021. It is deposed that the tenant had failed to vacate the suit premises and as such this tribunal should order it to do so.

14. The application was directed to be served for hearing on April 14, 2022. The application is opposed through a replying affidavit of Jeremiah Kongo Kihara sworn on April 11, 2022 on grounds that there was a pending case vide BPRT No E002 of 2022 which was filed before Nairobi BPRT No E211 of 2021 in which the landlord had been restrained from evicting, harassing, intimidating or in any other way interfering with the tenant’s quiet enjoyment and use of the suit premises.

15. The tenant repeats the depositions made in the affidavit sworn in support of the motion dated February 24, 2022 already dealt with in the foregoing paragraphs of this ruling.

16. In a further affidavit sworn on May 9, 2022, the tenant deposes that despite paying rent, the landlord’s caretaker one Ruth had failed to issue receipts nor acknowledge the payments made via bank deposits.

17. The tenant accuses the landlord of disconnecting electricity supply to the suit premises in a bid to forcefully evict it in total disregard of the court order issued on March 1, 2022. The landlord’s caretaker is accused of intimidation and harassment with a view to ensuring the tenant’s eviction.

18. It is on the said basis that the tenant seeks for this tribunal’s intervention so as to reign on alleged abuse of the rule of law by the landlord and forestall imminent eviction.

19. On May 12, 2022, the two matters were ordered consolidated with Nairobi BPRT E211 of 2022 being the lead file. Parties were also directed to file and exchange written submissions. Only the landlord complied.

20. I am now called upon to determine the following issues;a.Whether the tenant’s application dated February 26, 2022 and the reference of even date ought to be allowed or dismissed.b.Whether the landlord’s notice to terminate tenancy dated December 16, 2021 and application dated March 3, 2022 ought to be allowed or dismissed.c.Who is liable to pay costs?

21. I note that the tenant’s application dated February 26, 2022 was allowed on interim basis pending hearing inter-partes. The tenant simultaneously filed a reference under section 12(4) of cap 301 complaining that the landlord had increased rent without the requisite notice from kshs 5,000/- to kshs 10,000/-. The tenant complains further that the landlord was arbitrarily locking the suit premises without due regard to written law and that the notice served upon it was not justified having been made in bad faith and out of malice with a view to illegally evict it.

22. Although I have not found any evidence that the landlord increased rent verbally from kshs 5,000/- to kshs 10,000/-, there is evidence of harassment perpetrated by the landlord or his agents against the tenant which continued in the pendency of the instant proceedings. Indeed, the allegations of harassment and intimidation made against one Ruth who is the landlord’s caretaker have not been controverted by way of an affidavit by her. The disconnection of electricity to the premises which led to suspension of rent payment on June 7, 2022 was also not denied.

23. In the premises, I find and hold that the tenant is entitled to be protected from the illegalities perpetrated by the landlord and his agents as failing to do so will be an outright abdication of duty by this tribunal which was created to protect tenants from such conduct inter-alia.

24. I am fortified in that regard by the Court of Appeal decision in the case of Aikman & Others Vs Muchoki & Others[1982] eKLR whether Madan J A (as he then was) had the following to state at page 46:“…The court ought never to condone and allow to continue, a flouting of the law. Those who flout the law by infringing the rightful title of others and brazenly admit it ought to be restrained by injunction. If I am adding a new dimension for the grant of an interlocutory injunction, be it so. Equity will not assist law breakers.”

25. In regard to the notice of termination of tenancy issued to the tenant, I have not seen any evidence from the landlord on what he proposes to use the suit premises for. This viewed against the tenant’s deposition that there are other vacant rooms in the same building convinces me that the notice is purely intended to evict the tenant without any proper legal basis. I shall therefore dismiss it.

26. In view of my foregoing holding that there is no demonstrable evidence of what the landlord intends to put the premises occupied by the tenant into, I am afraid that the landlord is disentitled to the reliefs claimed in the application dated March 3, 2022. The same is thus a candidate for dismissal.

27. As regards costs, the same are in the tribunal’s discretion under section 12(1)(K) of cap 301, laws of Kenya but always follow the event unless for good reasons otherwise ordered. I have no reason to deny the tenant costs.

28. In conclusion, the final orders which commend to me in this matter are as follows;a.The landlord’s notice to terminate tenancy dated December 16, 2021 is hereby dismissed.b.The landlord is hereby restrained whether by himself, his servants, has agents and/or employees or otherwise from evicting, harassing, intimidating or in any other way interfering with the tenant’s quiet enjoyment and use of Room No 13 situate on plot No 4951/5/IV, Sawa House, Thika Town, Kwame Nkurumah Road in contravention of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act, cap 301, Laws of Kenya.c.The tenant shall continue paying rent as and when the same falls due and payable.d.The tenant’s costs of the consolidated reference is assessed at kshs 20,000/- all inclusive to be deducted from the rent account unless settled within the next fourteen (14) days hereof.

HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON GAKUHI CHEGE THIS 28TH DAY OF DECEMBER, 2022 IN THE PRESENCE OF KAMAU FOR THE LANDLORD AND IN THE ABSENCE OF THE TENANT.