[2022] KEBPRT 129 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO E257 OF 2021 (NAIROBI)

JOSEPH MACHARIA MWANGI................TENANT/RESPONDENT

VERSUS

ALFRED NDUNGU MWANIKI....................LANDLORD/APPLICANT

RULING

A. Parties and their representative

1. The Applicant, Alfred Ndungu Mwaniki is the Landlord of premises within Thika along General Kago Road near Mount Kenya University;

2. The Respondent, Joseph Macharia Mwangi, is the Tenant, having rented Stall No. 6, one of the units comprising the Landlord’s premises;

3. Both the Applicant and the Respondent appear pro se,their contacts being 0720344218 and 0716927605 respectively.

4. for the outstanding arrears owed to him. He therefore asked that his application to levy distress be allowed due to the Tenant’s continuous default to pay rent.

B. Jurisdiction

5. The Jurisdiction of this Tribunal is not in dispute.

C. Claims

6. In June 2021, the Tenant approached this Tribunal seeking orders compelling the Landlord to allow access to the rented premises known as Stall No. 6, and the OCS Thika Police Station to ensure compliance of these orders. The Tribunal received a letter dated 8th July 2021 from the OCS Thika Police Station asking to verify the authenticity of the orders, and the Tribunal affirmed the ingenuity of the order.

7. In response, the Landlord filed a reference against the Tenant alleging default in rent payments and therefore seeking leave to distress for rent. Upon hearing, the Tribunal ordered the Tenant to pay all outstanding arrears within 30 days and the Landlord was ordered to provide free access of the Tenant to the premises immediately. The Tenant opposes this orders, averring that he is under no obligation to pay rent betweenJune and September 2021 as the Landlord had closed the premises during that period. He seeks this Tribunal’s orders against the Landlord for damages amounting to Kshs. 155,000/- for losses incurred during the period the premises was closed.

D. List of Issues for Determination

8. I have had the occasion to peruse the pleadings of both the Landlord and Tenant and is my contention that the sole issue for determination by the Tribunal is;

a) Whether the Tenant is entitled to the remedies sought being access and enjoyment of the suit premises?

E. Analysis and Findings

9. This follows the Tribunal orders dated 28th September 2021 where the Landlord was ordered to provide the Tenant free access to the rented premises, and the Tenant was ordered to settle all outstanding rent arrears before 28th October 2021. The Tenant failed to remit his debt to the Landlord, alleging that he had no obligation to pay the rent for the months between June and September because the Landlord had kept the premises closed during that entire period. On the other hand, the Landlord denies having refused access to the premises during this entire period and maintains that he is entitled to the rents accrued during the months where the dispute subsisted.

10. The Tenant’s allegation that he had no access to the premises between June and September does not hold water. This is because he obtained orders from the Tribunal on 30th June 2021 which compelled the Landlord to surrender possession of the premises. From the records, it is clear that the Tenant obtained assistance from the OCS Thika Police Station to ensure compliance, with the Tribunal having confirmed the orders to the OCS on 15th July 2021. If at all the Tenant did not gain access to the premises during this period as alleged then that is subject of a full hearing of the reference as to why this did not occur. And if it is true that he had no access then he is entitled to damages and a rebate on rent as this would be in direct contravention of a court order and this determination can only be made at a full hearing.

11. I am guided as such in making the said orders

Orders

For the reasons given above I ORDER as follows:

a) The Landlord to submit to the Court a statement of accounts detailing all payments remitted by the Tenant in settlement of the rent, and the total outstanding arrears owed within 15 days.

b) Tenant shall also submit a statement of accounts in 15 days,evidence of non-occupancy and evidence of damages incurred due to the said non occupancy.

c) The Landlord to allow the Tenant access to the rented premises

d) Tenant shall keep paying rent as and when it falls due.

e) Reference to be fixed for hearing on 24th February 2022.

f) Costs shall be in the cause.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 4TH DAY OF JANUARY, 2022 IN THE PRESENCE OF ALFRED NDUNGU (LANDLORD) AND JOSEPH MACHARIA (TENANT).

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL