[2024] KEBPRT 137 (KLR)

Kilgoris Klassic Sacco Limited v Bonure (Tribunal Case E051 of 2023) [2024] KEBPRT 137 (KLR) (26 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 137 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E051 of 2023

CN Mugambi, Chair

January 26, 2024

Between

Kilgoris Klassic Sacco Limited

Applicant

and

Mark Ongeri Bonure

Respondent

Ruling

Introduction 1. The Tenant’s application dated 6. 9.2023 seeks orders that the landlord be ordered to open the suit premises, that the landlord be restrained from in any manner whatsoever interfering with the tenant’s quiet occupation and use of the suit premises, that the landlord be ordered to accept rent failure to which the tenant be allowed to deposit the same in the Tribunal. The assistance of theOCS, Nyacheki police station has also been sought in the compliance with the orders sought by the tenant.

The Applicant’s depositions 2. The tenant’s affidavit in support of its application may be summarized as follows:-a.That the tenant pays to the Respondent a monthly rent of Kshs. 2,500/= as per the agreement between the parties.b.That the landlord on 5. 9.2023, defaced the tenant’s advertisements and closed down the suit premises.c.That as at the time of closure, the tenant had no rent arrears as it had been paid up to August 2023. d.That the Respondent declined the rent for the months of September to December 2023. e.That the tenant has invested heavily in the suit premises.f.That the Respondent has threatened to evict the tenant.

The Respondent’s/Landlord’s depositions 3. The replying affidavit of the Respondent/Landlord may be summarized as follows:-a.That the tenant rented the suit premises in the year 2015 at an agreed rent of Kshs. 2,500/=.b.That the tenant only paid Kshs. 10,000/= in October 2022 and had not paid any rent since January 2015. c.That the parties entered into an agreement on 30. 5.2023. d.That the Respondent never threatened to evict the tenant but the tenant left voluntarily when the Respondent asked them to clear rent arrears amounting to Kshs. 200,000/=.e.That it is the Applicant who locked the premises and has also blocked the Respondent from using electricity for other premises since the main switch is in the tenant’s premises. the Respondent is thus forced to use, a petrol generator.f.That the tenant has also locked the premises the Respondent uses as a butchery.g.That the tenant is in rent arrears.h.That there is no existing tenancy between the parties the tenant having vacated the suit premises voluntarily and the Tribunal has therefore no jurisdiction to hear and determine the dispute between the parties.

Analysis and determination 4. The only issue that arises for determination in this application is whether the tenant is entitled to the orders sought in its application.

5. The tenant’s position is that on 5. 9.2023, the landlord closed its business premises even as the tenant had paid rent up to August 2023. The tenant has also deponed that the Respondent refused to accept the rent for the last quarter of 2023 and therefore requested the Tribunal to order the landlord to accept rent or the tenant to be allowed to deposit the same in court, if the landlord would not be willing to accept the same.

6. The Respondent’s position is that the tenant voluntarily vacated the premises. the Respondent’s affidavit is silent on the date or time the tenant allegedly vacated the premises and even if it were true, I am not able to ascertain whether it was before or after this suit was filed. From the landlord’s affidavit, I have difficulty believing that the tenant indeed vacated voluntarily or if he vacated at all.

7. The Respondent depones at paragraph 9 of his affidavit that it is the tenant who locked the suit premises and at paragraph 10, the Respondent depones that the tenant has barred him from accessing electricity since the tenant’s locked the premises that house the source of power. At paragraph 11, the Respondent depones that the tenant has not only locked the suit premises but has also locked the butchery the landlord was operating.

8. The above actions, if true, are clearly inconsistent with the conduct of a tenant who has voluntarily vacated a suit premises. I find it difficult to believe that the tenant while leaving voluntarily locked the premises and that the Respondent cannot access the same long after the tenant vacated. Consequently, I do find that there is no evidence that the tenant has vacated the suit premises voluntarily or otherwise and therefore the Tribunal has jurisdiction to hear and determine this matter contrary to the views held by the Respondent.

9. The tenant approached court for orders re-opening the suit premises and the Tribunal obliged the tenant by its orders issued on 12. 9.2023. the tenant has not indicated that the said orders have been disobeyed.

10. The Respondent has deponed that the tenant is in rent arrears. The Respondent has however failed to provide any coherent accounts and particulars of the arrears and I am therefore not able to tell from the Respondent’s affidavit, what amount, if any, is owed to the Respondent by the tenant.

11. There is clear evidence from the tenant’s affidavit that indeed the suit premises were defaced and closed down (see the photographs attached to the said affidavit). The closure of the tenant’s premises amounted to an illegal attempt to terminate the Applicant’s tenancy and I therefore have no difficulties in granting the prayers sought in the tenant’s application.

12. The Respondent has not challenged the tenant’s deposition that it had paid rent up to August 2023 neither has the Respondent denied that it declined to accept rent for the last quarter of 2023. In the circumstances, I will order the landlord do accept the rent failure to which the tenant will be at liberty to deposit the same in court.

13. In conclusion, I allow the tenant’s application dated 6. 9.2023 in terms of prayers 2, 3, 4, 5 and 6 thereof.

14. The complaint filed by the tenant has been sufficiently answered by the findings and conclusions above and is therefore allowed in the terms set out at paragraph (13) above.

15. The tenant will have the costs of the application and the complaint.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 26TH DAY OF JANUARY 2024. HON. CYPRIAN MUGAMBICHAIRPERSON01. 2024Delivered in the presence of;Mr. Masolo for the landlord/ApplicantMr. Mundia holding brief for Mr. Morara for the tenant