[2022] KEBPRT 746 (KLR)

Kirinyaga Tomato and French Beans Growers Cooperative Society Limited v Karatu (Tribunal Case 34 of 2021) [2022] KEBPRT 746 (KLR) (Civ) (22 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 746 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 34 of 2021

Gakuhi Chege, Vice Chair

September 22, 2022

Between

Kirinyaga Tomato and French Beans Growers Cooperative Society Limited

Applicant

and

Amos Karuga Karatu

Respondent

Ruling

1. The landlord herein moved this tribunal by a reference dated April 14, 2021 brought under section 12(4) of Cap. 301, Laws of Kenya complaining that the tenant had rent arrears amounting to Kshs 70,000/- since June 2018 to April 2021.

2. The landlord filed a simultaneous motion of even date seeking leave to levy distress for rent under section 12(1) (h) of Cap. 301, Laws of Kenya at the suit premises plot no 37, Kutus Old Market, Kirinyaga County. It further seeks to be allowed to evict the tenant from the suit premises and that the OCS, Kutus Police Station do provide security.

3. The application is supported by the affidavit of Lawrence Kiama Mutemi who is the chairman of the Landlord Cooperative Society sworn on April 14, 2021 and the grounds on the face thereof.

4. It is the landlord’s case that the respondent defaulted in paying rent amounting to Kshs 70,000/- from June 2018 to April 2021 and now seeks leave to levy distress.

5. On April 19, 2021, the application was fixed for hearing on May 11, 2021 inter-partes. The application was on May 7, 2021 served upon the tenant in terms of the affidavit of service of Antony Mwangi Kibuchi sworn on April 28, 2021.

6. On May 11, 2021, the matter came up in the presence of both parties and the tenant admitted owing Kshs 12,000/- which he had tried to pay but the landlord was alleged to have declined. It was thus ordered that the tenant pays the admitted sum by close of business on that day and the Tribunal’s Rent Inspector was directed to inspect the premises and file a report. The matter was fixed for May 19, 2021.

7. On May 6, 2021, the tenant filed a replying affidavit sworn on May 5, 2021, admitting that he only had arrears of Kshs 12,000/- being rent for 12 months which the applicant had failed to collect from him despite requests to do so.

8. According to the tenant, there was an oral agreement to pay Kshs 3000/- for three (3) months and that he had paid rent for 2019 upto April 2020.

9. The tenant deposes that he had erected temporary structures for his workshop and facilitated electricity supply and the landlord owed him Kshs 30000/- for the latter installation. He opposes the application for eviction as being unfair, prejudicial, unwarranted and unfortunate if granted.

10. The landlord’s chairman swore a further affidavit titled “Reply to Replying affidavit” sworn on May 24, 2021 annexing a declaration of the society marked “KTBCS1” showing indebtedness of Kshs 74,000/- since 2013 by the tenant in respect rent arrears.

11. The landlord denied that there was an agreement to pay Kshs 3000/- for three (3) months as contended by the tenant neither is it admitted that it refused to collect rent from the tenant. It accuses the respondent of being arrogant and hostile leading to the society seeking for police assistance.

12. The alleged improvement of the rental premises is denied and it is deposed that it is the applicant which undertook electrical wiring of its premises but the tenant fitted his own power token connection to the society meter box without consulting the committee as evidenced by annexure marked “KTFBCS2”. As such the applicant does not owe any money to the respondent.

13. The Rent Inspector’s report following a visit conducted on May 19, 2021 was filed on May 27, 2021 and confirms that the building does not have the society’s name. it confirms that the initial rent in 2013 was Kshs 1500/- which was increased to Kshs 2000/- after 3 months. The tenant was added more space at the rear of the building.

14. He was to add Kshs 500/- for the extra space but there was a dispute on when this happened.

15. The tenant currently occupies a bigger space measuring 35x 22 feet after getting the extra space in July 2018. The dispute relates to the tenant’s contention that he ought to pay Kshs 1000/- per month while the landlord contends that his rent is Kshs 2000/- from July 2018.

16. The tenant is accused of erasing the society’s name on the demised premises and replaced it with his own. On November 23, 2021, the landlord was allowed to levy distress against the tenant and to evict him from the suit premises with the OCS Kutus Police Station providing security.

17. On February 22, 2022, the tenant filed an application for orders of stay, variation and/or rescission of the orders granted on November 23, 2021 and that status quo be maintained pending hearing of the case. It is supported by the affidavit of the tenant sworn on February 22, 2022. He deposes that on November 23, 2021, he failed to attend court due to network failure as a result of which he was unable to log in for virtual hearing.

18. He claims not to be in any arears based on receipts marked ‘AKK1’ and as such his failure to attend court was occasioned by factors beyond his control. The application was fixed for hearing inter-partes on March 7, 2022 before Hon A Muma, Vice chair.

19. On April 20, 2022, the landlord moved this tribunal seeking for the same orders sought in the application dated April 14, 2021 and recovery of Kshs 50,000/- in rent arrears and Kshs 73,720/- in “unexpected cost” of this case. No documents are annexed to demonstrate how the costs of Kshs 73,720/- is made up.

20. The application was directed to be served for hearing inter-partes on June 21, 2022. The application is opposed through the tenant’s replying affidavit sworn on June 17, 2022 wherein it is deposed that the tenant had paid rent for March, April and May 2022 as per annexure “AKK1”.

21. The tenant contends that he had been paying rent since 2019 as per annexure marked “AKK2”. As such it is the tenant’s contention that the application lacks clarity and proof of allegations set out therein.

22. On June 21, 2022, this tribunal directed that the parties do file and exchange statements of rent account within 14 days and attach all documentary evidence of rent payments to enable determination of the amount owing. The matter was fixed for mention on August 2, 2022 for purposes of fixing a judgment date. The status quo was ordered to be maintained and the tenant directed to continue paying rent.

23. The landlord filed its statement of rent account dated July 22, 2022 showing a total rent balance of Kshs 54,000/- as at July 2022. The said analysis dates back to the year 2013. No response was filed by the tenant neither is there any rent account statement filed by him for the same period to controvert the figures presented by the landlord.

24. I have examined the said account statement vis -a-vis the amount shown on the receipts exhibited by the tenant in this matter which are all captured in the statement and I find the statement to be comprehensive and believable.

25. I have also compared the rent account statement against the Rent Inspector’s report and find that the tenant was indeed indebted to the landlord in the sum of Kshs 54,000/- as at July 31, 2022. The said amount continues to accumulate at a rate of Kshs 2000/- per month and currently stands at Kshs 58,000/- as at September 2022 (if no further payment has been made).

26. In the premises, I am unable to set aside the orders made on November 23, 2021 by Hon A Muma, Vice Chair allowing the landlord’s application.

27. It is trite law that in exercise of judicial discretion, this tribunal is enjoined to do so on terms that are just. I find that it will be unfair to exercise judicial discretion in favour of a tenant who has failed to pay rent for a period of over 27 months. Doing so would not be equitable as a tenant’s most cardinal obligation is to pay rent. Breach of such covenant disentitles the tenant to the equitable discretion of setting aside. He has not demonstrated that he has performed all his obligations under the contract in line with the decisions in Kyangavo v Kenya Commercial Bank Ltd & Another [2004] eKLR at page 13/14 and Samuel Kipkori Ngeno & Another v Local Authorities Pension Trust (Registered Trustees) & Another [2013] eKLR at paragraphs 9 & 12).

28. In the circumstances, the application dated April 14, 2020 having been allowed vide the orders of November 23, 2021, the subsequent application by the landlord of April 20, 2022 was not necessary save to clarify the amount due by the tenant which then stood at Kshs 50,000/-. The amount of Kshs 73,720/- towards unspecified “unexpected cost” has not been proved and the claim is dismissed.

29. As regards costs of the case, the same had been granted to the landlord vide the orders of November 23, 2021 and are hereby assessed at Kshs 20,000/- against the tenant in exercise of my discretion under section 12(1)(k) of Cap 301, Laws of Kenya.

30. In the premises, the final orders which commend to me in this matter are:-i.The tenant is liable to pay Kshs 58,000/- as at September 2022 in rent arrears subject to deduction of any payments made after July 22, 2022. ii.The tenant’s application dated February 22, 2022 is hereby dismissed with costs.iii.The orders given on November 23, 2021 are hereby reaffirmed as final orders of this tribunal.iv.The landlord’s costs against the tenant are assessed at Kshs 20,000/- all inclusive.It is so ordered.

RULING DATED, SIGNED & DELIVERED THIS 22ND DAY OF SEPTEMBER 2022 VIRTUALLY.HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Lawrence Kiama/Chairman of LandlordNo appearance