[2025] KEBPRT 32 (KLR)

Kimiti v Ramesh C. Dhingra t/a Green Valley International School (Tribunal Case E1115 of 2024) [2025] KEBPRT 32 (KLR) (14 January 2025) (Ruling)

Neutral citation: [2025] KEBPRT 32 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1115 of 2024

CN Mugambi, Chair

January 14, 2025

Between

Christopher Wanjaria Kimiti

Applicant

and

Ramesh C. Dhingra t/a Green Valley International School

Respondent

Ruling

Introduction 1. The Landlord’s Application dated October 15, 2024 seeks an order that the Landlord be permitted to levy distress for rent against the Tenant with respect to the demised premises pending the hearing and determination of the Reference.

The Landlord’s depositions 2. The Applicant in support of the motion sworn by the Landlord on 15. 10. 2024 may be summarized as follows;-a.That Case No. BPRT E247 of 2023 between the same parties herein was concluded in the Respondent’s favour and at the time of the said conclusion, the Tenant owed the Landlord rent arrears amounting to Kshs. 300,000/=.b.That after the said Ruling, the Tenant has never paid rent and is now in arrears of Kshs. 700,000/= and demand for the payment of the said rent has not elicited any response from the Tenant.c.That the Landlord has also issued a notice to terminate tenancy to the Tenant which has not elicited any response from the Tenant.d.That the Landlord is highly prejudiced by the Tenant’s refusal to pay rent as the Landlord is retired and has no other means of livelihood.

The Tenant’s depositions 3. The Tenant has filed Grounds of opposition and Preliminary Objection dated 23. 10. 2024. It is not clear from the pleadings what amounts to the grounds of opposition and what the Preliminary objection is because the Tenant has not separated them. I do not think grounds of opposition and Preliminary objection mean one and the same thing. I have seen the Tenant’s affidavit in support of his Reference and which he has adopted as his response to the Landlord’s motion dated 15. 10. 2024. I note that the depositions therein are not so dissimilar to the grounds of opposition and the Preliminary objection and I will therefore summarize the said affidavit as follows;-a.That there has been a previous case No. BPRT E247/2023 between the parties herein and while that matter was pending, the Landlord instructed Starstruck Auctioneers to levy distress and lock the premises by a letter dated 20. 3.2024. b.That the said Auctioneers forcefully moved into the premises on Friday 24. 3.2024, changed the locks and damaged properties belonging to the Tenant and the students.c.That in the aforesaid suit, the Tribunal set aside the distress and ordered for the re-opening of the premises and allowed the Complaint.d.That from December 2023, when the Landlord repossessed part of the premises and in March 2024, when the Landlord locked the premises, the Tenant continued to pay the water and electricity bill to the entire premises.e.That the Tenant is therefore entitled to a refund of half of the utilities paid and a re-assessment of rent payable for the portions he still occupies.f.That the items destroyed when the Landlord forcefully distressed for rent are as per the inventory annexed to the affidavit of the Tenant.g.That the Landlord cannot demand the full rent for the premises when he locked the same from March 2024 for four months and has been occupying half of the premises since December, 2023. h.That it is only fair that the file E247/2023 be consolidated with this instant file.

Analysis and determination 4. The only issue for determination in this Application is whether the Landlord is entitled to the orders sought in his Application.

5. The Landlord’s Complaint seeks to enforce the notice to terminate tenancy dated 29. 7.2024 and which the Landlord states has not been responded to nor complied with. I note from the affidavit of the Tenant that the Tenant depones to have been served with the said notice on 16. 10. 2024 by one Mr. Christopher Kimiti. Upon service, the Tenant filed his Reference to the Tribunal dated 14. 11. 2024 in opposing the landlord’s notice to terminate tenancy. I have perused the record and I have not seen any affidavit of service in respect to the notice to terminate tenancy as the only affidavit of service on record is the one sworn on 24. 10. 2024 in respect of the Complaint and notice of motion dated 15. 10. 2024 and the orders of the Tribunal issued on 16. 10. 2024.

6. In the circumstances, I have no reason to doubt that the Tenant was served with the notice to terminate tenancy on 16. 10. 2024 as he depones in his affidavit. That being the case, the Tenant’s Reference to the Tribunal dated 14. 11. 2024 was filed within time and is therefore a proper opposition to the Landlord’s notice to terminate tenancy.Section 4(4) of Cap 301 provides as follows;-“No tenancy notice shall take effect until such dated not being less than two months, after the receipt thereof by the receiving party as shall be specified therein (underlining mine).”

7. The notice to terminate tenancy is brought on the grounds that the Tenant has defaulted in the payment of rent, refused to enter into a proper lease agreement with the Landlord and that the Landlord wishes to sell the suit premises and for which he has a ready buyer.The Tenant having filed a Reference to the Tribunal in opposition to the Landlord’s notice, the notice is of no effect until and subject to the determination of the Reference by the by the Tribunal. (See Section6(1) of Cap 301). The effect of this provision is therefore that the notice remains in limbo until the Reference already filed is heard and determined.

8. The issue that therefore begs determination is whether the Landlord is entitled to an order for leave to levy distress for rent pending the hearing and determination of the Reference.There is nothing in the Law that denies the Landlord the right to rent during the pendency of the Reference as it is a matter of fact whether at any one time during the tenancy any rent is due and owing.

9. The Landlord has claimed that the Tenant is in rent arrears amounting to Kshs. 700,000/= (as at 15. 10. 2024 when the affidavit was sworn).The Landlord has deponed that since the court determined BPRT Case No. E247/2023, the Tenant has not paid rent even while he owed the rent of Kshs. 300,000/= as at the time the Ruling was delivered on 12. 7.2024.

10. The Tenant does not deny owing the Landlord the rent neither has the Tenant shown by evidence that he has paid the outstanding rent. The Tenant’s claim is that the Landlord, on or about December 2023, took possession of part of the premises and further locked out the Tenant from the suit premises from March 2024 to July 2024. It is the Tenant’s argument that the court has to assess the rent for the premises that the Tenant occupies and further order that no rent is payable for the months the premises remained locked. The Tenant further wants the Tribunal to make an order that he be refunded for half of all the funds expended in paying for electricity and water for the entire premises.

11. While dealing with the Tenant’s invitation to the Tribunal to inspect the premises and determine the rent payable for the portion occupied by the Tenant. The Tribunal in the Ruling delivered on 11. 7.2024 in BPRT Case No. E247 of 2023 at paragraph 10 stated as follows;-“The Tenant has invited the Tribunal to inspect the premises and to determine the portion that the Landlord took away against the portion that the Tenant occupies and to determine the rent payable by the Tenant. I have already observed that the rent payable at the expiry of the lease was Kshs. 180,000/=. The same was brought down to Kshs. 100,000/= in what to me seems to be a mutual agreement between the parties. The rent was reduced at the request of the Tenant contained in his letter of 25. 10. 2019 and the terms confirmed by the Landlord’s email of 8. 11. 2019. I do not therefore find any basis upon which the Tenant seeks for an inspection of the premises to determine the rent payable.”

12. The Tribunal went on to state at paragraph 11 of the same Ruling;“Further, if the Tenant was desirous of having a re-assessment of the rent, then he was obligated to comply with the provisions of Section 4(3) of Cap 301 which provides as follows;-A Tenant who wishes to obtain a re-assessment of the rent of a controlled tenancy or the alteration of any term or condition in or of any right or service enjoyed by him under such a tenancy shall give notice in that behalf to the Landlord in the prescribe form.”The Tenant cannot therefore achieve this by way of a notice of motion as he has sought to do in the instant case.”

13. The Tenant though desirous of having the rent re-assessed has failed to issue the notice required under Section 4(3) of Cap 301. This is the only way the Tribunal can be moved to have the rent assessed while giving both parties all the advantages afforded by the hearing of the Reference which would arise from or in opposition to such a notice. In these circumstances, the Tribunal has no reason to interfere with the rent currently payable and which I had already found to be Kshs. 100,000/= a month.

14. The Tribunal also dealt with the Tenant’s claim for compensation for the amounts paid for electricity and water bills when it stated at paragraph 12 (of the Ruling in BPRT Case No. E247/2023) as follows;-“The Tenant has also sought for orders that the Landlord compensates him for the amounts paid for electricity consumption and other utilities over the parts of the premises already occupied by the Landlord forcefully and unilaterally. Besides, this prayer lacking in particularity, I also note that in response thereto, the Landlord deponed that the Tenant only receives electricity bills for the part of the premises he occupies as the remaining parts of the premises are served by a separate meter number 14420257769. In the circumstances, I do not think there is any merits in this prayer.”

15. Consequently, I do not think it is now open for the Tenant to ask the Tribunal to again determine the same issue on the same facts and between the same parties, the Tribunal having already delivered itself on the said issue.

16. The Tenant has annexed to his affidavit an inventory of equipment and student properties allegedly destroyed by the Landlord when he levied distress for rent. It is apparent that the Tenant is desirous of having the Landlord compensate him for the said losses.Whereas the Tenant’s claim may or may not be legitimate, I do not think the mere existence of a claim by a Tenant against a Landlord bars the Landlord from recovering rent that is already in arrears. I do not think an unproved future claim can be a bar to the landlord’s right to his rent and can thereforeclaimed by the Landlord and consequently proceed to make the following orders;-a.That the Tenant shall pay to the Landlord all the outstanding rent within the next thirty (30) days from the date of this Ruling.b.That the Tenant failing to pay the rent as ordered in (a) above, the Landlord will be at liberty to levy distress for the said rent with the assistance of a licensed Auctioneer.c.That the Reference by the Tenant will be fixed for hearing.d.For clarity purposes, the Tenant is not to be evicted from the suit premises pending the hearing and determination of the Reference.e.The Tenant will bear the costs of the Application.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14TH DAY OF JANUARY,2025HON. CYPRIAN MUGAMBI - CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Ms. Mwaniki for the Applicant/Landlord and Mr. Ongocho holding brief for Mr. K’Opar for the Tenant.Court: Reference to be heard on 18. 2.2025. Parties to comply with Order 11 of the Civil Procedure Rules.