[2025] KEBPRT 202 (KLR)

Kemson Holdings Africa Limited v Jane Njeri Kariuki, Philip Mbugua, Mary Pauline Wanjiru Kamau, Nahashon Ngeru Mwangi, Fredrick Muhia Mwangi, Philip Njenga, Paul Kahenya t/a Goldem Maple Enterprises & another (Tribunal Case E992 of 2024) [2025] KEBPRT 202 (KLR) (17 February 2025) (Ruling)

Neutral citation: [2025] KEBPRT 202 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E992 of 2024

M Makori, Member

February 17, 2025

Between

Kemson Holdings Africa Limited

Applicant

and

Jane Njeri Kariuki, Philip Mbugua, Mary Pauline Wanjiru Kamau, Nahashon Ngeru Mwangi, Fredrick Muhia Mwangi, Philip Njenga, Paul Kahenya t/a Goldem Maple Enterprises

1st Respondent

Virmir Auctioneers

2nd Respondent

Ruling

1. The present claim was filed vide an application dated the 10th September 2024 supported by the supporting affidavit of Stephen Nzaku.

2. The essence of the application is that the applicant seeks to prevent the landlord from attaching and removing their property, and to obtain an order restraining the landlord from evicting, victimizing, threatening, intimidating, or otherwise interfering with their peaceful possession and use of the premises.

3. The respondents objected to the application by filling a replying affidavit dated the 22nd of October 2024 by Mary Pauline Wanjiru Kamau and another replying affidavit by Hadib Toola Wanjala.

4. The tenant subsequently filed a further affidavit dated October 31, 2024, along with submissions dated October 30, 2024. The landlord then filed submissions dated December 17, 2024.

5. From the overall pleadings and submissions made by the parties, two issues emerge for determination: Whether the applicant can amend its application and if so, whether the Whether the tenant/applicant is entitled to the orders sought.

Whether the applicant can amend its application? 6. Order 8 rule 5 of the Civil Procedure Rules provides as follows: -“For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any documents to be amended in such manner as it directs and, on such terms, as to costs or otherwise as are just.”

7. It is evident that the section does not explicitly prohibit the amendment of applications. Therefore, the primary consideration in an application for leave to amend should focus on whether the amendment is necessary for the proper determination of the case, and whether the delay in seeking the amendment would cause the opposing party prejudice that cannot be adequately compensated by an award of costs. This view is also espoused in the Court of Appeal case of Central Kenya Limited v Trust Bank limited (2000)2 E.A 365 as follows: -“A party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is affected and that the amendment can be allowed without injustice to the other side.”

8. In the instant case, the Applicant sought leave and amended the application initially dated the 10th of September 2024. It is noted that the same seeks to alter parts of the motion to include orders after the hearing of the application.

9. The issue then is whether the amendment would render the supporting affidavit redundant or cause prejudice to the respondent.

10. In the replying affidavit filed by the respondents, they have not demonstrated any prejudice they would suffer if the court grants the application for amendment. Furthermore, in the absence of evidence suggesting bad faith in the application, there is no reason to deny the Applicant the opportunity to amend their application.

11. In this tribunals view, allowing the amendments aligns with the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010, which emphasizes that in exercising judicial authority, courts and tribunals should be guided by the principle that "justice shall be administered without undue regard to procedural technicalities."

12. It is important to note that if this tribunal is incorrect in allowing such an application, the main determination of this matter would rely on the referenced file, which has not been amended.

Whether the tenant/applicant is entitled to the orders sought? 13. The tenant has made claim that the landlord is desirous and has made steps to evict him and proclaim their goods based on a proclamation notice issued to them by Virmir Auctioneers.

14. The tenant further avers that he had paid an amount of 1,022,000/= to the landlord at the pendency of the term of the tenancy being the 1st of April 2024. A fact that is not disputed by the landlord.

15. However, the landlord asserts that the amount was fora.Ksh 279,000 being rent payment for three months.b.Ksh 93,000 as one month rent deposit.c.Ksh 650,000 for purchase of furniture and fittings in the rented space.

16. The tenant then states that they had made a contractual agreement dated 18th day of March 2024 which has been attached. The said agreement shows among other terms a monthly payment of rent of ksh 40,000/= and a service charge of ksh 1,750/=.

17. On the other hand, the landlord, through his replying affidavit, asserts that the agreement is fictitious. He alleges that the last page was removed and the initial pages were altered. To support her claim, the landlord has attached an agreement dated March 14, 2024, which, among other terms, specifies a monthly rent of Ksh 92,000.

18. This tribunal has had the opportunity to review both agreements and hereby presents the following analysis.

19. As opined by the landlord the agreement filed by the tenant shows that the only page which is bears a paper punch mark is the last page of the agreement which contains the signature of the parties. The other pages are not paper punched and neither are they signed by any party raising doubts as to its standing.

20. Furthermore, no documents have been submitted by the aforementioned witnesses, nor has any attempt been made to involve any other partner or witness to the agreement to support the said narrative.

21. Additionally, no explanation has been issued to attempt to explain or disprove the landlord’s narrative on the difference on the unpunched agreements and as such this tribunal is inclined to find that the agreement filed by the tenant is not authentic.

22. This tribunal has also reviwed the landlord’s filed agreement which is neither signed nor stamped by any of the parties. The landlord has made claim that this was the intended agreement to be signed however this tribunal finds it difficult to also confirm this claim since no proof nor witnesses have been brought forth to back this claim.

23. It is not in dispute that there is a tenancy agreement and the same must have been backed up by terms of monthly payment, however with the clear disparity in terms of the amounts to be paid and having found that the credibility of both agreements cannot be properly ascertained, this tribunal shall seek reliance from a rent assessor to determine the rent payable at the premise.

24. Further, to the claim that the landlord had issued the tenant with furniture at the time of the tenant occupying the premise the landlord has attached a whatsapp correspondence.

25. The contents of this correspondence are not controverted by the tenant and as such the tribunal is inclined to admit that indeed there were furniture’s and items issued to the tenant.

26. Since the value of the furniture is unclear and it is uncertain whether the parties had agreed that it should be deducted from the initial deposit, and in the interest of justice, this tribunal hereby orders that the furniture be returned to the landlord and the initial deposit be deducted as monthly rent payment.

27. In the upshot and based on the foregoing the tribunal orders that; -a.That the tenant shall return the original furniture and fittings provided by the landlord at the time of occupying the building within 30 days from the date of delivery of this ruling.b.That a joint assessment of the rent for the suit property shall be conducted to determine the monthly rent payable from April 1, 2024. c.That the determined monthly rent be deducted from the amount paid by the tenant, totaling Ksh 1,022,000/-, until fully completed.d.That the landlord shall not harass, intimidate, threaten, evict and/or interfere with the quite possession of the tenant at the rental property being LR.NO 209/12620 until the said assessment is undertaken and the rental amounts deducted in full.e.That upon completion of the deductions, the landlord is free to issue an appropriate notice.f.The OCS of Capitol Hill Police Station shall ensure compliance with these orders.g.Each party shall bear its own costs.

HON. MIKE MAKORIMEMBERBUSINESS PREMISES RENT TRIBUNALRULING DELIVERED DATED AND SIGNED AT NAIROBI, THIS 17TH OF FEBRUARY, 2025.