[2022] KEBPRT 750 (KLR)
The Tribunal determined that its jurisdiction is contingent upon the existence of a tenancy relationship between the parties. Since the Landlord had evicted the Tenant for rent arrears and subsequently rented out the premises to a third party, the tenancy relationship had ceased to exist. Without an ongoing tenancy,...
Source-derived case information.
- Citation
- [2022] KEBPRT 750 (KLR)
- Parties
- Applicant: Benard Mutua Kiema; Respondent: Berita Mulwa
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 615 of 2020
- Procedural Posture
- Tribunal Application / Ruling on Application for Injunctive and Ancillary Reliefs
- Outcome
- application dismissed with costs
- Judges
- A Muma
- Legal Topics
- Controlled Tenancy, Eviction, Rent Arrears, Distress for Rent, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Mutua Kiema
Applicant
Berita Mulwa
Respondent
Procedural Posture
Tribunal Application / Ruling on Application for Injunctive and Ancillary Reliefs
Legal Issues
- 1 Whether the Tribunal has jurisdiction where the tenancy relationship has ceased to exist.
- 2 Whether the Tenant is entitled to injunctive reliefs restraining the Landlord from eviction, distress, or interference with the premises.
- 3 Whether the Tenant is entitled to a refund for renovations and provision of utilities by the Landlord.
Ratio Decidendi
The Tribunal determined that its jurisdiction is contingent upon the existence of a tenancy relationship between the parties. Since the Landlord had evicted the Tenant for rent arrears and subsequently rented out the premises to a third party, the tenancy relationship had ceased to exist. Without an ongoing tenancy, the Tribunal lacked jurisdiction to entertain the Tenant's application for further reliefs. Consequently, the Tribunal dismissed the Tenant's application with costs, as it could not grant orders in the absence of a subsisting tenancy.
Court Disposition
application dismissed with costs
Orders
- The Tenant's application is dismissed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
Kiema v Mulwa (Tribunal Case 615 of 2020) [2022] KEBPRT 750 (KLR) (15 September 2022) (Ruling)
Neutral citation: [2022] KEBPRT 750 (KLR)
Republic of Kenya
In the Business Premises Rent Tribunal
Tribunal Case 615 of 2020
Andrew Muma, Vice Chair
September 15, 2022
Between
Benard Mutua Kiema
Tenant
and
Berita Mulwa
Landlord
Ruling
1. On June 11, 2020, the Tenant moved this Tribunal by way of a notice of motion under certificate of urgency under section 12(4) of theLandlords and Tenants (Shops, Hotels and Catering) Establishments ActCap 301. The Tenant was seeking amongst other orders that pending the hearing and determination of the application that the tribunal order the Landlord and its agents be jointly and severally restrained from evicting, levying distress, harassing, removing , increasing rent or interfering with the Applicant’s peaceful enjoyment of the premises. The Tenant also sought seeking refund of KShs.210,000. 00 used to renovate the premises and orders that the respondent be compelled to provide water and electricity to the Tenant. Lastly, the Tenant prayed that the Officer Commanding Station-Huruma Police Station to oversee the implementation of those orders.
2. On July 3, 2020, the Tribunal ordered that the Landlord provide water and electricity to the Tenant.
3. On July 14, 2020, the Landlord moved this Tribunal vide a notice of motion under certificate of urgency seeking that the order dated July 3, 2020 be set aside and/or stayed pending the hearing and determination of the suit. Additionally, the Landlord prayed for orders compelling the Tenant to pay all outstanding rent arrears the default of which the Landlord should be allowed to levy for distress of rent. Lastly, the Landlord prayed that the Officer Commanding Station-Huruma Police Station to oversee the implementation of those orders.
4. On December 2, 2020, the Tenant yet again filed a notice of motion application under certificate of urgency seeking orders similar to the June 11, 2020 application and additional orders to stop rent increase from Kshs 12,500. 00 to Kshs 15,000. 00 and the Landlord to be restrained from locking and/or letting out the premises. The Tenant also prayed for orders that they deposit rent with the Tribunal and that they be allowed un-limited access to the suit premises. The prayers were granted on December 14, 2020 and the rent increase stopped.
5. On December 14, 2020, the Tribunal granted orders compelling the Landlady to provide water and electricity to the Tenant’s premises in default of which the Tenant can provide those services and deduct costs from future rent. The Tribunal restrained the Landlady from increasing rent from Kshs 12,500. 00 to Kshs 15,000. 00 pending the hearing and determination of the case.
6. The applications were dealt with and the Tribunal gave a ruling dated January 21, 2022 where it concluded that the rent due was Kshs.12,500. 00 as per the Tenancy agreement. The Tribunal also ordered the Tenant to keep paying the rent per month, in default of which the Landlord would levy for distress of rent.
7. Accordingly, I place reliance on my previous ruling. The Landlady has claimed that she evicted the Tenant on May 8, 2022 after he accrued 3 months arrears. As such, she went on to exercise her rights in accordance with the ruling and thus, removed the Tenant’s goods and rented out the premises to a third party.
8. Additionally, the fact that the premises has now been rented out to a third party means that there is no tenancy relationship in existence between the parties. The foundation of its jurisdiction is an existing tenancy relationship which cannot be established thus, divests off jurisdiction from this Tribunal. Accordingly, we have no other recourse but to down our tools.
9. For this reason, the Tenant’s application is dismissed with costs.
HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 15TH DAY OF SEPTEMBER, 2022 IN THE ABSENCE OF THE PARTIES.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL