[2022] KEBPRT 882 (KLR)

Kironget v Mule (Tribunal Case E027 of 2022) [2022] KEBPRT 882 (KLR) (Civ) (29 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 882 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E027 of 2022

Gakuhi Chege, Vice Chair

September 29, 2022

Between

Kennedy Kibet Kironget

Tenant

and

George Hamisi Mule

Landlord

Ruling

1. The tenant moved this tribunal vide a complaint dated March 8, 2022 under section 12(4) of cap 301, Laws of Kenya in which he complained that the landlord locked up his business premises without giving him sufficient notice.

2. He simultaneously filed a motion of even date seeking for an order directing the landlord to reopen the business premises and allow the tenant to carry on with his tailoring business situated at Maliki Market within Eldoret Town, Uasin Gishu county pending hearing of the reference. He also seeks that damages incurred be provided for.

3. In his supporting affidavit sworn on March 8, 2022, the tenant deposes that he has been payingKshs3500/- as monthly rent by 7th of every month as per annexure ‘KK1’. On February 7, 2022, the landlord sent the tenant a text message on his cellphone asking him not to pay rent for that month and to vacate by the end of February 2022 as he intended to put up a hardware business on the said premises.

4. Subsequently, the landlord wrote a notice to the tenant’s wife one Susan Ndiwa headed “relocation notice” giving five (5) days from 14th to February 18, 2022 to vacate or legal action would be taken. The notice is marked ‘KKK2’.

5. On March 1, 2022, the landlord locked the business premises and refused to reopen it despite the tenant having been paying rent and complying with his obligations as a tenant. The notice was too short and the tenant complains that he could not relocate within the period given.

6. The tenant contends that the notice is malicious, unjustified and unlawful. He and his wife rely on the said business premises for their sustenance and deserve the protection of this tribunal.

7. Interim orders were given ex-parte on March 14, 2022 and the application was directed to be heard inter-partes on March 28, 2022.

8. The application is opposed through a replying affidavit of the landlord/respondent sworn on July 27, 2022 wherein it is deposed that the initial rent of Kshs 3500/- was mutually increased to Kshs 4000/-.

9. Owing to non-payment of rent by the tenant, the landlord deposes that he had arrears ofKshs 12,000/- as at March 2022 as a result of which he served a termination notice marked ‘GHM-1’ on March 11, 2022 as per annexure ‘GHM-2’. The notice was expressed to take effect on June 1, 2022.

10. The landlord denies locking the business premises and contends that the tenant is not entitled to the reliefs sought having failed to meet his obligation of paying rent. No damages have been demonstrated as having been suffered on account of locking of the premises.

11. The landlord also filed grounds of opposition on the same grounds set out in the replying affidavit discussed above. The said grounds are dated March 7, 2022.

12. The tenant filed a further affidavit sworn on August 9, 2022 and denies that there was a mutual agreement to increase rent to Kshs 4000/-. The tenant denies failing to pay rent maintaining that the landlord reversed a payment thereof and urged him to sit on the deposit and thereafter vacate therefrom.

13. The tenant contends that he has the text message and video recording of the landlord locking the business premises which he pleads to be allowed to produce at the hearing of the main reference.

14. According to the tenant, the suit premises were locked on 1/3/2022 and reopened in the presence of the OCSMukuyuni Police Station on 31/3/2022. The tenant paid arrears after reopening of the business premises.

15. The matter was directed to be disposed of by way of written submissions and both parties complied with the tenant’s submissions being dated September 23, 2022 and the landlord’s submissions dated September 11, 2022.

16. I am required to determine the following issues:-(a)Whether the tenant is entitled to the reliefs sought in the application dated March 8, 2022 and complaint of even date.(b)Who is liable to pay costs?

17. The tenant approached this tribunal seeking for an order inter-alia for reopening of his business premises situated at Maliki market, Eldoret Town in Uasin Gishu county. The said order was granted and the premises were reopened according to the tenant in the presence of the OCS, Mukuyuni police station on March 31, 2022. As such, this prayer is already spent and therefore moot.

18. The only other substantive prayer remaining is the one for payment of damages arising from the illegal closure of the premises. The said damages according to the tenant will be proved at the hearing of the main reference. However, the alleged damages are neither pleaded specifically nor is there any materials placed before this tribunal on the nature of such damages.

19. I agree with the landlord’s counsel’s submission that such damages ought to be specifically pleaded and strictly proved in line with the Court of Appeal decision in Hahn vs Singh(1985) 716 at page 721 where it was held as follows:-Special damages must not only be specifically claimed (pleaded) but also strictly proved………for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depend on the circumstances and nature of the acts themselves”.

20. It is trite law that a party is required to plead its whole case and is not allowed to litigate in instalments. It will be encouraging trial by ambush if I allowed the tenant to produce evidence of the damages claimed at the hearing of the complaint in absence of any pleadings in support thereof. I therefore find that the claim for damages does not lie against the landlord on the basis of pleadings filed by the tenant herein.

21. As regards costs, the same are in the tribunal’s discretion under section 12(1) (K) of cap 301, Laws of Kenya. The tenant has demonstrated that he came to this tribunal after being threatened with an illegal notice to vacate the suit premises. The landlord has not denied writing a text message to the tenant’s wife to the same effect. In my view, he was justified to come to this tribunal for protection. I also believe that the landlord closed the suit premises until March 31, 2022 from March 1, 2022. I agree with the tenant that no sane person can close his own business premises and run to seek protection from this tribunal. As such, having been granted reopening orders, he is entitled to costs of the matter.

22. As the complaint and the application by the tenant raises the same issues, I am entitled under section 12(4) of cap 301, Laws of Kenya to determine the two together. This ruling shall therefore apply to both applications and complaint filed herein.

23. In conclusion, the final orders which commend to me under section 12(4) of cap 301 Laws of Kenya are:(i)The tenant’s complaint and application dated March 8, 2022 is allowed in terms of the orders given herein on March 14, 2022 and the tenant is hereby allowed to carry on with his tailoring business situate at Maliki market within Eldoret town Uasin Gichu county.(ii)The tenant’s rent for the month of March 2022 when the premises were locked is hereby waived.(iii)The OCS Mukuyuni police station or any other police station that is nearer to the suit premises shall ensure compliance with the orders herein.(iv)The tenant’s claim for damages is hereby dismissed for lack of specific pleadings and evidence in proof thereof.(v)The tenant is awarded costs ofKshs 20,000/- against the landlord which shall be defrayed against the rent account if not paid within thirty (30) days hereof.It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 29TH DAY OF SEPTEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of:-Miss Cherono for the TenantNo appearance for the Landlord