[2022] KEBPRT 146 (KLR)

Kinyanjui v Inderpal Singh Kular also known as Andy Singh Kular (Tribunal Case E555 of 2021) [2022] KEBPRT 146 (KLR) (Civ) (24 June 2022) (Judgment)

Neutral citation: [2022] KEBPRT 146 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E555 of 2021

Gakuhi Chege, Vice Chair

June 24, 2022

Between

Purity Njeri Kinyanjui

Tenant

and

Inderpal Singh Kular also known as Andy Singh Kular

Landlord

Judgment

1. The landlord/tenant relationship between the two parties in this case begun on 1st March 2019 when they entered into a license agreement whereby the tenant was to occupy a portion of L.r No. 209/2490/7 for purposes of running a bar and restaurant known as Pub Derockers Bar & Restaurant. The agreed monthly rent was Kshs.50,000/- payable in advance on or before the 5th day of each month.

2. It was an obligation of the tenant to keep the premises, fixtures and fittings in good and tenantable repair and was not to use it in a way that would cause, damage, disturbance, annoyance, inconvenience and interference to the premises or adjoining or neighbouring premises. The agreement was produced as landlord’s exhibit 1.

3. Sometimes on 13th August 2021, the landlord issued a tenancy notice to the tenant seeking to terminate her tenancy in the suit premises with effect from 1st November 2021 on the grounds that:-a.“The tenant has defaulted in paying rent for a period of over 20 months and is in arrears of Kshs.1,130,000/- as at August 2021 and she has persistently delayed in paying rent which has become due and payable.b.The tenant has demolished, pulled down, removed and damaged the walls, partitions and fixtures in the premises and this will affect the structural integrity of the building and interfere with the quiet enjoyment and use of the adjoining premises by other tenants.c.The tenant has disconnected the power supply to other tenants in the premises from the meter that is within the premises she occupies.d.The tenant has partitioned the premises and parted with possession or sublet portions thereof to third parties without the consent of the landlord”.

The notice was produced as landlord’s exhibit 8. 4. The tenant being opposed to the said notice filed the instant reference vide the reference dated 27th September 2021. The matter was directed to proceed by way of viva voce evidence after both parties filed witnesses statements and documents in compliance with order 11 of the Civil Procedure Rules, 2010.

5. The parties filed their documents and witnesses statements as follows:-i.Landlord’s list of witnesses, copies of statements and documents dated 18th November 2021. ii.Landlord’s further witness statement dated 9th December 2019. iii.Landlord’s supplementary list of documents dated 9th December 2019. iv.Tenant’s witness statement dated 30th November 2021. v.Landlord’s supplementary list and copies of documents dated 16th March 2022.

6. The issues for determination in this matter are:-a.Whether the landlord’s tenancy notice ought to be upheld or dismissed.b.Who is liable to pay costs of the reference?

7. The Landlord gave evidence and relied on his witness statements and documents enumerated above. He produced the listed documents as his exhibits 1-15.

8. According to the landlord, the tenant was not supposed to sublet the suit premises. She is the one who filled the licence agreement in her own handwriting and brought a witness with her and all parties signed it. Rent was payable to the landlord’s account in Absa Bank (formerly Barclays Bank). He produced bank account statement evidencing payments made by the tenant as rent. He also produced a summary of all rent payments as his exhibit 4. The tenancy commenced in March 2019 and the last rent payment by the tenant was made on 29th July 2019. By then the tenant was in Kshs.70,000/- rent arrears.

9. On 4th October 2019, she made a further rent payment via Mpesa to the landlord’s bank account in the sum of Kshs.70,000/- and a further payment of Kshs.30,000/- on 7th October 2019. She never paid any more rent after that date.

10. In November 2019, the landlord instructed Hebros Auctioneers to levy distress to recover rent arrears. As a result, the tenant filed BPRT Case No. 1126 of 2020 and obtained an injunction order to restrain the landlord from recovering the rent arrears. The landlord was ordered to return the attached goods vide exhibit 2 on 18th February 2020. An order of status quo was subsequently made on 28/2/2020.

11. According to the landlord, the tenant broke down walls and took over a space occupied by a former tenant who vacated the commercial building as evidenced by photos produced as landlord’s exhibit 5. The landlord moved the Tribunal to vacate the injunction and status quo order and succeeded in the application. The tenant was ordered to pay arrears of Kshs.980,000/- failing which leave to distress was issued.

12. As a result, the landlord commissioned an auctioneer to levy distress in recovery of Kshs.1,130,000/- as at August 2021. Upon distress and sale of the properties, only a sum of Kshs.50,300/- remained as per exhibit 12 and the amount could not be enough to pay auctioneers charges.

13. A proposal by the tenant through her advocates contained in exhibit 10 to pay by instalments of Kshs.20,000/- per month was declined by the landlord.

14. The landlord issued the termination notice in the backdrop of the tenant’s failure to pay rent. By then the tenant was in arrears of Kshs.1,130,000/- and had interfered with structural design of the premises. She had disconnected electricity to other tenants and had also partitioned and sublet the suit premises to third parties.

15. On the issue of subletting, the landlord relied on an affidavit attached to the supplementary list of documents produced as exhibit 14.

16. The landlord confirmed receipt of Kshs.300,000/- when the matter was pending in court pursuant to orders made in BPRT No. 1126 of 2019.

17. In cross examination, the landlord maintained that he was the rightful owner of the suit premises. He stated that he did not report the issue of disconnection of electricity to Kenya Power & Lighting Co. Ltd. He maintained that the tenant was not paying rent as per agreement and threatened to kill him if he set foot in the suit premises.

18. The landlord called one Kang’eri Wanjohi T/A Kindest Auctioneers who confirmed that he attached the tenant’s properties. He attached in the presence of Police officers and that he followed all the requirements under the Auctioneers Act.

19. The tenant testified and relied on her witness statement filed in court enumerated above. She denied signing the lease document. She stated that she occupied the premises in the year 2017 under a different landlord. She confirmed that monthly rent is Kshs.50,000/- and uses the premises as a bar, restaurant and store.

20. She contends that the orders obtained by the landlord were based on falsehoods as she was operating the business when he was allowed to break into the premises.

21. She stated that the rent arrears as at 18th February 2020 was Kshs.130,000/- and not Kshs.1,130,000/- as claimed by the landlord. The outstanding rent was for 2 months and a half. She claims that the premises were damaged together with her properties during the distress for rent.

22. According to the tenant, the landlord was one Manmohan Singh and that she stopped rent payment after being confused and wanted proof of ownership of the suit premises.

23. According to the tenant, the photographs produced by the landlord were taken when she was renovating the kitchen during the corona period closure of Bars and Restaurants by Government to enable her sell take away chips. She denied demolition of walls.

24. According to the tenant the goods attached by Kindest Auctioneers were worth more than the rent claimed by the landlord. She states that there was no proclamation served upon her. Some items were not listed according to her.

25. The tenant contends that she never refused to pay rent and that the problem was caused by change of names from one landlord to another without notice and being harassed. According to her Inderpal Singh Kular never produced any identification hence delaying the court process. The tenant states that she has dealt with 5 different landlords each claiming ownership.

26. She ends her statement with a request to pay the arrears with favourable instalments. In cross examination, she admitted having been in arrears by the time she was issued with the termination notice. The tenant recognized the license agreement and the details contained therein. She however disowned the signature on the agreement.

27. She however confirmed having filled the details in the agreement. She confirmed having made payments via Mpesa to the account of Manmohan S. Kular & Inderpal Kular. She confirmed that all the payments made by her via Mpesa were captured in the landlord’s rent account statement. She stated that her arrears was approximately Kshs.700,000/-.

28. The tenant denied having demolished walls but admitted to have removed some of her own partitions within the suit premises. She admitted subletting the premises with the consent of the landlord.

29. She denied disconnecting the other tenants electricity. In re-examination, she admitted having not paid rent from November 2019 to the year 2021 for reason that there was an order for return of goods which was not obeyed by the landlord.

30. Having listened to both parties, I am convinced by the landlord’s evidence that the tenant owed more than 2 months rent by the time she was issued with notice of termination of tenancy.

31. Although the tenant claims that there was a dispute on ownership of the suit premises, no evidence was tendered to prove such dispute. The landlord stated that the person known as Manmohan Singh was his father with whom he held a joint account at Absa Bank. Again the license agreement disowned by the tenant and which she admitted to have filled in her own handwriting and details shows the landlord to be Inderpal Singh. It is signed by both parties in the presence of one Eliud Karanja Matindi who is said to have been called by the tenant. I do not believe the tenant when she states that she did not sign the said agreement. I find and hold that she signed the agreement after filling her details in own handwriting.

32. The tenant attributes her failure to pay rent on alleged ownership dispute of the suit premises. I have found that there was no such dispute. The second reason is that the landlord failed to comply with the order to return her goods as ordered by the Tribunal. The auctioneer was called and confirmed having complied with the order. There is no complaint filed with the Auctioneers Licensing Board against the said auctioneer and I do not believe the tenant when she gives that reason to be the cause of her failure to pay rent. The value of the attached goods was not given by the tenant neither is it sought that the same be offset against the rent owing.

33. The tenant wrote to the landlord’s advocates seeking to pay rent arrears in instalments which request was rejected. She could not have made such a proposal if she indeed felt that she did not owe the amount claimed by the landlord.

34. In the premises, I am convinced beyond any peradventure that the landlord has demonstrated the ground of non-payment of rent set out in the tenancy notice. I however find and hold that the other grounds have not been proved as the photographic evidence of demolitions of walls and partitions was not backed by a professional structural engineer or otherwise and the tenant denied having demolished any mother wall.

35. The issue of subletting is neither here nor there as the deponent of the affidavit referred to by the landlord was not called by the landlord or the tenant.

36. I therefore find and hold that the landlord was able to prove that the tenant was in arrears of rent claimed in this case and is entitled to recover the same after deducting the amount paid during the pendency of the case adding further accrued rent until the tenant vacates the premises.

37. In regard to costs, the same are in the courts discretion but always follow the event unless for good reasons otherwise ordered. I have no good reasons to deny the landlord costs. I shall therefore award him costs of the reference.

38. In conclusion therefore, the final orders that commend to me are:-i.The Landlord’s notice to terminate tenancy dated 13th August 2021 is hereby upheld.ii.The tenant shall deliver vacant possession of the demised premises within the next Thirty (30) days hereof failing which she shall be evicted therefrom by a licensed auctioneer who shall be given security by the OCS Pangani Police Station at her own costs.iii.The tenant shall pay the landlord rent arrears which stood at Kshs.1,280,000/- as at 30th November 2021 in addition to any further accrued or accruing rent less any payments made until she delivers vacant possession of the suit premises or is evicted therefrom.iv.The tenant shall pay costs of the reference to the landlord.

It is so ordered.RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 24TH DAY OF JUNE 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Kinyua for TenantMiss Awori holding brief for Ombati for Landlord.