[2021] KEBPRT 320 (KLR)
The court found that the tenant was duly served with the landlord's notice of motion and failed to file any response or attend court. In accordance with Section 10 of Cap 301, the landlord's notice to terminate tenancy took effect from 1st January 2021, as the tenant did not oppose or refer the matter to the...
Source-derived case information.
- Citation
- [2021] KEBPRT 320 (KLR)
- Parties
- Applicant: John Wanyange Mwangi; Respondent: Duncan Nganga Kimotho
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 74 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Unopposed Notice of Motion
- Outcome
- Application allowed as unopposed.
- 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
John Wanyange Mwangi
Applicant
Duncan Nganga Kimotho
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Unopposed Notice of Motion
Legal Issues
- 1 Whether the landlord is entitled to orders for termination of tenancy due to the tenant's failure to file a reference against the notice to terminate tenancy.
- 2 Whether the landlord is entitled to recover rent arrears and levy distress for rent against the tenant.
Ratio Decidendi
The court found that the tenant was duly served with the landlord's notice of motion and failed to file any response or attend court. In accordance with Section 10 of Cap 301, the landlord's notice to terminate tenancy took effect from 1st January 2021, as the tenant did not oppose or refer the matter to the tribunal. The landlord's application was therefore unopposed and allowed in full, including orders for the tenant to vacate, payment of rent arrears, and authorization to levy distress for rent.
Court Disposition
Application allowed as unopposed.
Orders
- The tenant shall vacate the premises for failure to file reference to the landlord's notice to terminate tenancy dated 22nd October 2020, effective 1st January 2021.
- The tenant shall pay rent arrears amounting to Kshs 1,084,000 as at 1st June 2021.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
TRIBUNAL CASE NO 74 OF 2021 (NAKURU)
JOHN WANYANGE MWANGI..........................LANDLORD/APPLICANT
VERSUS
DUNCAN NGANGA KIMOTHO.........................TENANT/RESPONDENT
RULING
1. The Landlord’s notice of motion dated 17th June 2021 seeks the following orders;
a. Spent.
b. That the Tenant be ordered to vacate the premises for failure to file reference to the Landlord’s notice to terminate the terms of tenancy dated 22nd October 2020 and which became effective on 1st January 2021.
c. That the Tenant be ordered to pay rent arrears amounting to Kshs 1,084,00/- as at 1st June 2021.
d. That the Tenant be granted an order to engage Tango Auctioneers to break into the Tenant’s premises at plot No. 10/33 Nakuru Municipality, remove the Tenant’s property and levy distress to recover rent arrears.
e. That the OCS Nakuru Central Police Station does ensure compliance with this order.
f. Costs.
2. The application is grounded on the grounds on the face of the said application and supported by the affidavit of John Wanyange Mwangi sworn on 17th June 2021.
3. That Rent Inspector Nakuru has confirmed that the Tenant has not filed a reference in opposition to the Landlord’s notice to terminate tenancy dated 22nd October 2020.
4. On 5th July 2021, the Landlord’s notice of motion dated 17th June 2021 was ordered served for hearing on 26th July 2021. When this matter came up for hearing on 26th July 2021, the Tenant did not attend court. He had been served and an affidavit of service to that effect was sworn by one Samuel Omari.
5. I have read the said affidavit and I am satisfied that the Tenant was dully served.
6. The Tenant having not filed any response to the Landlord’s application dated 17th June 2021 and having failed to attend court to oppose the same in any manner, I do find that the application is unopposed. I further find that the Landlord’s notice to terminate tenancy has taken effect from 1st January 2021 in conformity with Section 10 of Cap 301 of the Laws of Kenya which is in the following terms;
“Where a Landlord has served a notice in accordance with the requirements of section 4 of this Act on a Tenant and the Tenant fails within the appropriate time to notify the Landlord of his unwillingness to comply with such notice, or to refer the matter to a Tribunal, then subject to section 6 of this Act, such notice shall have effect from the date therein specified to terminate the tenancy or alter the terms and conditions thereof or the rights or services enjoyed thereunder.”
7. Having so stated, the Landlord’s application dated 17th June 2021 is hereby allowed in terms of prayers 1, 2, 3, 4, 5 and 6.
HON. CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL
Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this 1stday of September, 2021 in the presence of Njorogefor theLandlord/Applicantand in the absence of theTenant.
HON. CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL