[2024] KEBPRT 411 (KLR)

Kiarie & another v Leseya & 2 others (Tribunal Case E849 of 2023) [2024] KEBPRT 411 (KLR) (26 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 411 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E849 of 2023

CN Mugambi, Chair & Joyce Murigi, Member

February 26, 2024

Between

Evaline Njeri Kiarie

1st Applicant

Evans Kiarie Muteti

2nd Applicant

and

Alfred Leiyan Leseya

1st Respondent

George Saitoti

2nd Respondent

Ms Njeri

3rd Respondent

Ruling

Introduction 1. The Tenants Reference/Complaint to the Tribunal dated 30. 8.2023 is filed pursuant to the provisions of Section 12(4) of Cap 301of the Laws of Kenya. To quote the Complaint, it concerns the Landlords in that;“They had …..my business premises and disconnected electricity power with intention to evict leading to loss and damages of Kshs. 261,694/= contrary to Cap 301 Laws of Kenya.”In understand the Tenants Complaint to be that the Landlords illegally locked the Tenants business premises and disconnected electricity therein as a consequence of which the Tenants incurred losses he estimated to be worth Kshs. 261,694/=.

2. On 2. 10. 2023, the Tribunal ordered the parties to file their affidavits within fourteen (14) days and the Reference was fixed for hearing on 1. 11. 2023. The Reference was eventually heard on 28. 11. 2023 and I summarise the parties evidence as follows hereunder:-

The Tenant’s Case 3. The Tenants case is that on 13. 10. 2022, the Respondents disconnected his electricity supply and that though he paid for the same on 14. 10. 2022, the electricity was reconnected on 27. 10. 2022.

4. The Tenant has further claimed that the Respondent closed the suit premises on 17. 11. 2022 and this forced the Tribunal to approach the Tribunal for orders to re-open the premises. The premises were eventually re-opened on 26. 11. 2022 and the Tenants granted costs of Kshs. 25,000/=.

5. The Tenant testified that he incurred the following losses when his business was closed down and electricity disconnected.a.Losses due to electricity disconnection Kshs. 54,000. 00b.Water Kshs. 25,000. 00c.Water filters Kshs. 10,000. 00d.Power expenses Kshs. 8,000. 00e.Lost business to ……… Kshs. 40,000. 00 per monthf.Photocopies and printing Kshs. 7,000. 00g.Legal costs Kshs. 20,000. 00h.Cost of renovations Kshs. 75,000. 00Total Kshs. 239,000. 00

6. Upon cross examination by the Respondents, the Tenant stated that it was his worker who told him that it was the 3rd Respondent Ms. Njeri who disconnected the electricity. He further complained that while the power was disconnected for fifteen (15) days, he had a pending electricity bill of Kshs. 11,862/=.

7. The Tenant denied that the electricity was disconnected by staff of Kenya Power and Lighting Company Ltd, hereinafter KPLC.

8. The Tenant also stated that his premises remained closed for eight (8) days and that further the Respondents all keen on having the tenant thrown out of the premises.

The Landlord’s Case 9. The said affidavit generally depones that the fact that the disconnection of power supply to the tenants premises in the month of September 2022 was carried out by KPLC field officers and not the Respondents.

10. The 2nd Respondent has further deponed that the Respondents never closed the Tenants suit premises.

11. The 2nd Respondent has prayed that the Tenant should clear the rent arrears and vacate the suit premises.

12. The 2nd Respondent testified that he was there when the staff of KPLC disconnected the electricity and further that his sister the 3rd Respondent was not there when the electricity was disconnected. It was the 2nd Respondent’s further evidence that the tenant owed KPLC when the electricity was disconnected.

13. On cross examination, the 2nd Respondent stuck to his ……….that power supply was disconnected by staff from KPLC due to a pending electricity bill.

14. The Respondent on cross examination further stated that the tenant has never served him with any court orders and the Respondent has never closed the suit premises although the tenant is in rent arrears and there does not exist a court order directing the tenant NOT to pay rent.

Ms. Njeri 3rd Respondent 15. The 3rd Respondent relied on her affidavit sworn on 18. 10. 2023 in her evidence in chief. The 3rd Respondent’s said affidavit is in summary to the effect that;a.The Respondents are not responsible for payments of bills to KPLC as all tenants in the suit premises have individual postpaid meters.b.That on 13. 10. 2022, KPLC disconnected the power supply to the tenants and the same was reconnected after the tenant settled his electricity bill of Kshs. 12,000/=.c.That the Respondents have never locked the tenants premises nor have they disconnected electricity leading to the alleged losses by the tenant.d.That the tenants claim is doctored and should be dismissed with costs.

16. On cross examination by the tenant, the 3rd Respondent confirmed that the tenant indeed called her and told her that the electricity had been disconnected.The 3rd Respondent further stated that the tenant had a bill of Kshs. 12,445/= owed to KPLC. The 3rd Respondent also confirmed that they had been served with a court order in the year 2022 which they gave to their Advocate but their Advocate never turned up in court.

17. The 3rd Respondent further stated that she is not aware if the tenant’s shop had ever been locked.

Analysis and determination 18. The issues that arise for determination in this Reference are the following in my view;-a.Whether the Respondents were responsible for or actually disconnected the tenants power supply to the suit premises on 13. 10. 2022. b.Whether the Respondents illegally closed the Tenants premises.c.Whether the tenant has proved his claim for losses incurred amounting to Kshs. 261,684/= as a consequence of power supply and illegal closure of the suit premises.d.What orders ought to issue in the circumstances of this case>

Issue A 19. The Respondents have testified that they did not disconnect the tenants electricity. Whereas the tenant states that he was told by one of his workers that it was the 3rd Respondent who disconnected the electricity, the tenant did not call the said worker to testify on his behalf. The 2nd Respondent did not also testify that the tenants electricity supply was disconnected in his presence by staff from the KPLC and the 3rd Respondent was not at the scene during the disconnection. It is also on the record that the tenant called the 3rd Respondent on 13. 10. 2022 and told her that his electricity had been disconnected. Further, it is not disputed that all the tenants including the tenant in this case have their individual meters and that they are responsible for the payment of their individual electricity bills.

20. The tenant, the 2nd and 3rd Respondents are all in agreement that by the time the power to the tenants premises was disconnected, he had an electricity bill of Kshs. 11,862/= or Kshs. 12,000/= according to the 3rd Respondent. Be that as it may, the only clear problem in this regard is that the tenant owed KPLC an electricity bill which was unpaid as at the time his power supply was disconnected. In this case, it is more probable than not that the tenant’s power supply was disconnected by KPLC.

21. I have carefully gone through the affidavit sworn by the tenant on 30. 8.2023 in support of his application of even date and the oral evidence of the tenant and I have not found any proof that indeed the Respondents disconnected the tenants power supply. On this issue, it is therefore my finding that the tenant has not established/proved that it is the Respondent who disconnected his power supply.

Issue B 22. The tenant has claimed the global figure of Kshs. 261,694/= on account of illegal locking of the premises and disconnection of electricity. At paragraph 11 of the affidavit sworn by the tenant on 30. 8.2023, the tenant deponed as follows:-“That sometimes back, the Respondents had locked my business premises and disconnected electricity power supply which led to loss and damages amounting to Kshs. 261,694/=.”

23. The affidavit does not provide for the particulars of the closure of the tenant’s business premises but during the hearing, the tenant stated that the p remises was locked on 17. 11. 2022 and re-opened on 26. 11. 2022. The Respondents have denied closing down the tenant’s business premises as the 2nd Respondent states that there was no need to lock down the premises. It therefore becomes the tenant’s word against the Respondents word. Without further independent evidence, I am not able to conclusively state that the tenants premises was locked down by the Respondents who have clearly denied doing so. The burden of establishing this fact lay with the tenant and it is my finding that the tenant did not disclose this evidential burden. In this regard, the laws of Kenya provides as follows;-“Whoever desires any court to give Judgment as to any legal right or ……..dependent on the existence of facts which he asserts, must prove that those facts exist.(2)when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.Section 108- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.Section 109- The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall be on any particular person.On this issue, I do therefore find that the tenant has not proved that it is the Respondents who locked his suit premises if it was ever locked at all.”

Issue C 24. I have already found that the Respondents do not bear any responsibility for the alleged closure of the suit premises and the disconnection of electricity thereof. It therefore follows that they cannot be held liable for the losses allegedly incurred by the tenant as a result of the said alleged transgressions. But even if I were to have found the Respondents liable, I would still not have made a favourable finding for the tenant. The receipts for the purchase of water marked as “ZA” by the tenant show that the purchase of the water was done on 28. 10. 2022 and 27. 10. 2022 while the evidence of the tenant is that the premises was locked on 17. 11. 2022 and opened on 26. 11. 2022, meaning that the premises was open during the purchase of the said water. The claim for Kshs. 40,000/= on account of business lost to a wire outfit is not sustainable as there is no demonstrated connection in that loss to the Applicants business. The Respondents have no duty to shield the tenant from healthy business competition.

25. The cost of renovations claim is also not tenable as there is no evidence that any renovations became necessary as a consequence of the alleged closure of the business premises and the disconnection of electricity. I also find the claims for police expenses, photocopies and legal costs not to be claims arising out of the alleged transgression and therefore not payable to the tenant by the Respondents. It would have been also expected that the tenant would have provided a statement of his accounts in projecting his business losses but this he did not do. For these reasons, I would still have dismissed the claims for compensation as being not ……proved.

Issue D 26. Consequently, and following from the above findings, I do not find any merits in the tenant’s case and the same is dismissed.

27. Each party will bear their own costs of the suit.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 26TH DAY OF FEBRUARY 2024. HON. CYPRIAN MUGAMBI -CHAIRPERSON- 26. 2.2024HON. JOYCE MURIGI - MEMBER - 26. 2.2024Delivered in the presence of the Tenant, Mr. MutetiIn the absence of the Respondents