[2024] KEBPRT 122 (KLR)

Kirema & another v Kigia (Tribunal Case E20 of 2023) [2024] KEBPRT 122 (KLR) (25 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 122 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E20 of 2023

P May, Member

January 25, 2024

Between

Ernest Kirema

1st Landlord

Mary Nene

2nd Landlord

and

Michael Kungu Kigia

Tenant

Ruling

1. The tenant approached the Tribunal by filing the reference dated 22nd May, 2023 seeking orders against the Landlord whom he accused of unlawfully closing the demised premises without obtaining an order from any court or Tribunal. The tenant averred that he had incurred losses due to the landlord’s actions of closing the demised premises. The application was placed before the Honourable Tribunal whereby directions were issued setting the application for inter partes hearing.

2. The landlord subsequently filed an application under certificate before the aforementioned directions were complied with. The landlord’s application dated 30th May, 2023 sought for orders compelling the tenant to pay the rent arrears due and give vacant possession of the demised premises. It was the landlord’s testimony that the tenant had accumulated rent arrears to the tune of Kshs. 70,190/- . The landlord stated that he was constrained to make the application since they were apprehensive that the tenant may vacate the premises without making the payments. The Tribunal upon considering the application at theex parte stage set a hearing date for the said application.

3. The tenant would again file another application dated 4th August, 2023 seeking to compel the landlord to reopen the demised premises and make electricity reconnection. The Tribunal granted interim orders in favour of the tenant pending the inter partes hearing.

4. In the course of the present proceedings, the Tribunal has dispensed with the tenant’s application dated 22nd May, 2023 as the same was allowed unopposed since the landlord failed to attend Tribunal when it came up for hearing. The parties thereafter elected to canvass the 2 pending applications by way of written submissions.

5. I have considered the applications, the responses thereto and all the evidentiary material on record and would proceed as follows:

6. The present dispute just like the mythological hydra has several heads. The landlord and the tenant seem not to agree on various issues in dispute. The tenant for instance has maintained that he has always paid rent as when it fell due and is not in arrears. The landlord on the other hand has stated that the tenant is a habitual rent defaulter who is abusing the process of the Honourable Tribunal so as to evade his contractual obligations. The landlord has further accused the tenant of carrying out illegal business at the demised premises.

7. From the onset, it is important to state that the Tribunal draws its powers from Section 12 ofCAP 301. A mere perusal of the powers enumerated under the said section 12 reveals that the Tribunal lacks the jurisdiction to deal with elements of illegal use of the premises. The landlord’s assertations therefore that the tenant is using the demised premises for purposes that have not been sanctioned under the law is outside the jurisdiction of the Tribunal and the same should be prosecuted at the appropriate forum.

8. I will now address the question as to whether the tenant is in rent arrears. It is trite law that he who alleges must prove. Section 107(i) of the Evidence Act provides that: -“Whoever desires any court to give Judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

9. The landlord in trying to prove that the tenant had defaulted in paying rent annexed a payment schedule and a corresponding statement. I have perused the same. The tenant had accumulated arrears to the tune of Kshs. 56,000 as at 11th September, 2023. The tenant has not offered any documentary evidence to rebut this position but has made mere statements that they had paid rent up to January,2024.

10. The tenant’s duty to pay rent is cardinal and forms the cornerstone of the tenancy relationship. In the case of Samuel Kipkorir Ngeno And Another v Local Authorities Pension Trust (Registered Trustees) And Another (2013) eKLR it was held that;“A tenant first and main obligation is to pay rent as and when it becomes due for the landlord has the right to an income from his investment. Why would a tenant allow himself to fall into such huge arrears of rent?The temporary injunction sought in the present application is an equitable remedy at the court’s discretion. He who comes to equity must come with clean hands. A tenant who in in huge arrears is underserving of the courts discretion. The court cannot be the refuge of a tenant who fails to meet his principal obligations of paying rent as and when it becomes due.”

11. The Tribunal has considered has considered the prayers sought by the tenant. Having established that the tenant was in default and failed to prove that the premises were locked, he is not deserving the orders sought. Besides the Tribunal issued an order to reopen the premises and there has been no complaint as to the compliance with the same. The issue is therefore moot.

12. Having made the above findings, the following orders commend itself:a.The landlord shall file and serve an updated statement of account within 3 days.b.The tenant shall upon receipt of the statement of account settle the outstanding rent arrears within 7 days. In default the landlord shall be at liberty to levy distress without any further reference to the Tribunal.c.This ruling settles the applications filed by the parties and the reference.d.Each party shall bear their own costs.e.The orders shall apply to Meru BPRT E018 of 2023

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25TH DAY OF JANUARY 2024. HON. PATRICIA MAY - MEMBER -25. 01. 2024Delivered in the absence of the parties.