[2021] KEBPRT 312 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E069 OF 2021 (NAIROBI)

JORDANA WACEERA..................................................................TENANT/APPLICANT

VERSUS

KIAMA MUTURI.................................................................LANDLORD/RESPONDENT

RULING

1. By a motion dated 20th April 2021 the Applicant/Tenant is seeking for orders that the Respondent pays to her Kshs.975,000/- being security deposit, an equivalent of two months and structural improvements.

2. In the alternative, she is seeking that the Respondent be ordered to deposit the said amount into a joint interest earning account in the names of the Applicant and Respondent’s advocates or be deposited in court.

3. She further seeks that in lieu of a refund of the monies spent on improvements, the Respondent be ordered to permit the complainant to enter upon the premises and remove all such articles that are considered structural improvements.

4. Finally, she seeks that the OCS, Kibera Police Station be directed to assist in compliance with the orders.

5. The application is supported by the Applicant’s affidavit sworn on 20th April 2021 and the grounds set out on the face thereof.

6. What comes out of the application is that the Applicant was a tenant in the Landlord’s/respondent’s premises known as shop no. 89, on ground floor of Land Reference no. 209/18869 Ngong Road, Nairobi vide a tenancy/lease agreement dated 1st August 2016 for a term of one (1) year.

7. The tenancy was however terminated allegedly without issuing proper notice contrary to section 4(5) of Cap. 301, Laws of Kenya without refund of the amount paid as security rent deposit and compensation for structural improvements made therein by the tenant with the consent of the Landlord.

8. It is now more than one year three months since the said events took place and it is the Applicant’s contention that the continued non payment of the amounts claimed is equivalent to unjust enrichment and that this Tribunal has jurisdiction to entertain the claim.

9. The Respondent filed a replying affidavit sworn on 1st July 2021 denying that he ever gave approval to any alterations done on the premises and that the Tenant was at liberty to remove all her belongings including any structural modifications but she failed to do so.

10. Further, the Tenant/applicant was bound to restore the premises to its initial state before vacating as a precondition for refund of the deposit sum which she refused to do.

11. Failure by the tenant to renovate the premises occasioned financial difficulty to the Landlord as he was unable to get another tenant to take up the premises until after 3 months of the Applicant’s vacation therefrom.

12. According to the Respondent the cost of renovation was assessed by his own valuer vide annexture KM-3 at Kshs.440,000/-. The Applicant failed to do her own valuation upon being asked to do so despite having objected to the said amount.

13. The Applicant filed a further affidavit sworn on 4th August 2021 whose contents are a replica of submissions and which clearly departs from the original case as presented by her.

14. For example, it introduces a new angle that the termination of the tenancy was unprocedural and appear to be seeking for such a declaration without amending the application presented before this Tribunal. It is clearly unhelpful to her case.

15. I am called upon to determine whether to allow the application or not. I am also called upon to determine who is liable to pay costs of the proceedings.

16. What is before me is an application for refund of security of rent deposit and compensation for improvements made in the premises.

17. There is no dispute that the tenant paid Kshs.405,000/- being three (3) months rent as a rent security deposit. A sum of Kshs.300,000/- was paid as goodwill.

18. Under clause 2(a) of the lease agreement, the tenant was required at the expiry or earlier determination of the lease repaint and redecorate the interior of the premises and make good all want of repair to the same condition and standard as an entry, decoration and painting being the responsibility of the tenant.

19. The Tenant under Clause 2(f) was to be responsible for all damage which is incurred to walls, ceilings, floors, windows and doors and to repair the same at his own expense if required to do so.

20. The sum of Kshs.405,000/- paid towards security rent deposit was refundable at the expiry of the lease interest free subject to the tenant’s fulfilment of all her obligations thereunder.

21. The first claim that I need to determine is in respect of Kshs.975,000/- being the security deposit and structural improvements.

22. The Applicant has not annexed any valuation report in respect of the claimed improvements. It is trite law that he who alleges must prove.

23. Section 107(1) of the Evidence Act, Cap 80, Laws of Kenya provides that “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.

24. There being no evidence that the tenant had the Landlord’s permission to make the alleged improvements at the cost of the Landlord and there being no evidence as to the value of the same, I am unable to pass judgment in favour of the Applicant in that regard.

25. I have also considered the fact that the tenant has not tendered an evidence to show that she was denied permission to remove her improvements from the suit premises. However, there is no good reason why the Landlord should keep the said improvements provided that the premises are restored back to its original condition as stipulated in the lease agreement.

26. The rent security deposit is intended to ensure that in the event the tenant fails in his/her obligation under a tenancy/lease agreement the same is applied to do so. The landlord has submitted a quotation by Jadu Renovators Limited in respect of the renovations desired all amounting to Kshs.440,000/-.

27. As observed above, the tenant has not provided any counter valuation to show that the values ascribed in the said quotation are either exaggerated or improper. As it turns out, the said quotation remains unchallenged and I have no reason to discredit it.

28. In the premises, I make the following final orders in respect of the said application:-

(i) The Applicant is disentitled to the refund of Kshs.405,000/- paid as rent security deposit and the same shall be applied towards restoring the suit premises to the original condition in terms of the quotation by Jadu Renovators Ltd dated 8th February 2020.

(ii) The applicant shall in addition pay to the Respondent a sum of Kshs.35,000/- being the balance of costs of renovations after defraying the amount in (i) above.

(iii) The applicant is hereby authorized to remove all the improvements and fixtures brought by her into the suit premises on condition that she will make good any damage occasioned to the roof, walls and floor in the said process.

(iv) Each party shall bear own costs of this suit.

It is so ordered.

DATED, SIGNED and DELIVERED THIS 3RD DAY OF SEPTEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In presence of:-

Mr. Kegonde for the Respondent/Landlord

Mr. Mwine for the Applicant/Tenant