[2022] KEBPRT 845 (KLR)

Kimathi v Nyaga & another (Tribunal Case 29 of 2021) [2022] KEBPRT 845 (KLR) (Civ) (21 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 845 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 29 of 2021

Andrew Muma, Vice Chair

November 21, 2022

Between

Terry Kagwiria Kimathi

Tenant

and

Collins Mugendi Nyaga

Landlord

and

Munene Willisken Ndii

Agent

Ruling

A. Parties and Representatives 1. The Applicant Terry Kagwiria Kimathi is the tenant and had rented space on the Suit Property on Plot No. 27B Kibugua for the business. (hereinafter known as the ‘tenant’)

2. The firm of Kogai & Company Advocates represent the Tenant/Applicant in this matter.

3. The 1st Respondent Collins Mugendi Nyaga is the landlord and rented out space for the business in the suit property to the tenant (hereinafter the “landlord”)

4. The 2nd Respondent Willisken Ndii are the alleged agents for the 1st Respondent.

5. The firm of Kenta Moitalel & Co. Advocates represent the Respondents in this matter.

B. The Dispute Background 6. The Landlord and the Tenant entered into a Tenancy Agreement on February 1, 2021 for a period of three years at a monthly rent of Kshs. 10,000.

7. The Landlord issued the Tenant with a verbal notice to increase rent from Kshs. 10,000 to Kshs. 17,000 in response to which the Tenant has filed a Reference and a Notice of Motion application dated June 9, 2021 under section 12 (4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Tenant was seeking that this Honourable Tribunal grants orders restraining the Landlord from harassing, trespassing, evicting and interfering with the quiet possession by the tenant pending the hearing and determination of this matter.

8. During the pendency of the Suit the Tenant vacated the premises and what is left before the Court is with regards to the determination of damages.

C. The Tenant’s Claim 9. The tenant filed a Reference and a Notice of Motion Application dated June 9, 2021 to which he obtained interim reliefs.

D. List of Issues for Determination 10. It is the contention of this Tribunal that the issues raised for determination are as follows;I. Whether the Tenant is entitled to damages as a result of the termination of the tenancy?

E. Analysis and FindingsWhether the Tenant is entitled to damages as a result of the termination of the tenancy? 11. Section 4(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya provides that;4(2) landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form.4(4) No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party

12. The above provision requires that before the Landlord can alter the terms of a tenancy, they must issue a notice of not less than two months to the Tenant.

13. Additionally, Section 12 (1)(i) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya provides that;“To award compensation for any loss incurred by a tenant on termination of a controlled tenancy in respect of goodwill, and improvements carried out by the tenant with the landlord’s consent”

14. The above provision allows the Business Premises and Rent Tribunal in addition to the powers conferred upon it by the Act to award compensation to any tenant who incurs loss as a result of termination of their tenancy

15. In the present case the Tenant has averred that they were issued with an oral notice to increase rent by the Landlord. It is as result of this intended action that the Tenant approached the Tribunal by way of a Reference and Notice of Motion. They wanted the Landlord to be prevented from increasing rent and renting out the premises to another tenant.

16. During the pendency of the suit, there was a back and forth between the parties as to access of the premises and it unfortunately led to the breakdown of the tenancy relationship and the tenant was ordered to vacate the premises.

17. The main question before this tribunal is with regards to whether the tenant is entitled to damages. They have alleged that they undertook substantive renovations in the premises and that the Landlord locked the premises for a substantive amount of time which led to loss of business and stock since the premises has been given to a third party.

18. The Landlord on the other hand alleges that the tenant has constantly defaulted in payment of rent, that they have failed to adhere to the court orders requiring them to vacate the premises, instead they proceeded to lock the premises with an additional padlock.

19. Having examined the file, I have observed that the tenant seemed to have been evicted at the instance of orders to pay rent which they failed to do as such the landlord cannot be faulted on the same.

20. With regards to the renovations carried out, the tenant has annexed correspondence between themselves and the Landlord proving that they informed the landlord of their intent to renovate. Additionally, the Landlord gave their approval to the same as long as the tenant abides to Clause 4. 2 of their Lease Agreement. The said Clause provided that each party is expected to inform the other in the event they intend to renovate through a written notice and the costs will be offset by the other party as per the receipts and costs incurred.

21. Upon perusal of the receipts annexed by the Tenant in relation to the renovations done, I have observed that the same amount to Kshs. 83,000 which does not seem substantial compared to the arrears claimed by the Landlord of Kshs. 120,000.

22. In light of the foregoing, the Tribunal holds that the amounts owed by each party to the other seem to reconcile and as such no party has a claim as against the other.

F. Ordersa. The amounts claimed by the parties reconcile and as such the tribunal finds parties have no claim as against each other.b. Each party shall bear their own Costs.

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon A. Muma this 21st Day of November 2022 In the presence of Oketch for the Tenant and Mwai for the Landlord.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL