[2021] KEBPRT 436 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO E001 OF 2021 (EMBU)

JOSEPHAT KABINGA WAGOCO......................LANDLORD

VERSUS

DAVID CHEGE MWANGI.........................................TENANT

RULING

The Landlord’s notice of motion dated 7th May 2021 seeks the following orders;

1. Spent.

2. That an order be issued for the Landlord/Applicant herein through an appointed Auctioneer to levy distress to the Respondent/Tenant’s moveable items to recover rent arrears amounting to Kshs 82,000/-.

3. That an order be issued for the OCS Wanguru Police Station to ensure compliance of these court orders and that peace prevails while levying distress.

4. That this honourable court be pleased to waive the 10% duty filing fees on distress.

5. Costs.

The application is based on the grounds;

1. That the Respondent is in rent arrears amounting to Kshs 82,000/-.

2. That the Respondent has given false promises to pay rent.

3. That unless the orders sought are granted, the Applicant stands to suffer losses and his reference shall be rendered nugatory.

The application is also supported by the affidavit of Josphat Kabanga Wagoco, the Applicant herein which affidavit I proceed to summarize as follows;

1. That the Tenant pays a monthly rent of Kshs 7,500 at the Applicant’s premises, plot No. 1347B Wanguru.

2. That the Tenant has failed to pay rent for eleven months amounting to Kshs 82,500.

3. That the demised premises is the Landlord’s main and only source of income.

When the application came up for hearing on 3rd June 2021, the Tenant though served did not attend. The Tenant, indeed has not responded to the Landlord’s application. The Landlord/Applicant submitted during the hearing that upon service of the application on the Tenant, the Tenant paid the sum of Kshs 22,500, a sum representing three months’ rent. There is rent outstanding for nine months amounting to Kshs 67,500/-.

In the absence of any response by the Tenant, I will allow the Landlord to levy distress against the Tenant for the sum of Kshs 67,500/- and also order the OCS Wanguru Police Station to ensure peace prevails during the exercise to levy distress. The Landlord is free to engage an auctioneer of his choice.

Although the Landlord has prayed that the Tribunal waives the payment of the 10% duty filing fees on distress, no material has been placed before the Tribunal in support of the Landlord’s inability to pay the said fees. I decline to grant the same.

The Landlord’s reference to the Tribunal;

The Landlord’s complaint to the Tribunal expressed to be brought under section 12(4) of Cap 301 is in the following terms;

“That the Tenant has failed to pay rent for the last eleven months contrary to the provisions of Cap 301 Laws of Kenya. I pray this court to intervene and I be given the necessary orders.”

Section 12(4) under which the complaint is brought provides as follows;

“In addition to any other powers specifically confined on it by or under this Act, a Tribunal may investigate any compliant relating to a controlled tenancy made to it by the Landlord or the Tenant and may make such orders thereon as it deems fit.”

The complaint raised by the Landlord has been resolved in his favour in this ruling. In the circumstances and as provided under section 12(4) above, the order that commends itself is one allowing the application as set out in the preceding paragraphs and also allowing the complaint with costs to the Landlord/Applicant.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON GAKUHI CHEGE THIS 18TH DAY OF JUNE 2021 IN THE PRESENCE OF THE LANDLORD IN PERSON AND IN THE ABSENCE OF THE TENANT.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL