[2021] KEBPRT 223 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 593 OF 2020 (NAIROBI)

(CONSOLIDATED WITH NAIROBI BPRT 812 OF 2020)

LAWRENCE NGIGE MWIRURI..................................................LANDLORD

VERSUS

PETER KILONZO................................................................................TENANT

JUDGMENT

1. By a plaint dated 11th June 2020, the Landlord moved this Tribunal in BPRT No. 593 of 2020 seeking for:-

(a) Vacant possession of the suit premises known as L.R. 219/Mwiki and the development thereon including House No. 7, located at 2nd floor, Baba Dogo estate, Nairobi city.

(b) Rent arrears of Kshs.91,000/- and interest thereon.

(c) Costs of this suit and interest thereon.

(d) Any other or further relief as this court may deem fit.

2. The Plaintiff is the registered owner of the suit premises which he leased to the defendant in May 2017 at a monthly rent of Kshs.7000/- in consideration of his quiet enjoyment and occupation thereof to carry out his business.

3. The defendant last paid rent for the month of May 2019 and locked the premises with his belongings inside. He stopped paying rent and by the time of filing suit was in arrears of rent totaling to Kshs. 91,000/-.

4. Despite The Plaintiff calling the defendant severally, he failed to show up and as a result was served with notice to terminate tenancy to vacate the suit premises with effect from 1st January 2020.

5. The defendant failed to comply with the said notice to vacate and has frustrated the plaintiff’s efforts to take possession.

6. The suit premises is the plaintiff’s only source of income and the defendant had no right to occupy the premises rent free. This necessitated filing of this suit.

7. The plaintiff/landlord filed a notice of motion dated 11th June 2020 seeking various reliefs under certificate of urgency and all the prayers were granted ex-parte by Hon. Mbichi Mboroki, Chairman (as he then was) on 11th June 2020.

8. The application seem to have addressed all the reliefs sought in the plaint and nothing remained pending after the same was granted as prayed.

9. O 23rd September 2020, the tenant filed Nairobi BPRT No. 812 of 2020 complaining that the Landlord locked the business premises and further moved the working machinery elsewhere.

10. By an application dated 22nd September 2020, the Tenant sought for an order that the Landlord/Respondent do release the Tenant’s apparatus/tools of business forthwith and unconditionally.

11. He further sought that the OCS Mwiki Police Station do assist in implementation of the order and finally that the landlord be restrained and prohibited from harassing the Tenant until the hearing of the complaint.

12. The application is supported by the affidavit of the Tenant sworn on 22nd September 2020.

13. The Respondent filed a replying affidavit sworn on 5th February 2021 in which it is deposed that the application is an abuse of court process in view of Nairobi BPRT No. 593 of 2020 which had been concluded and final orders given.

14. The applicant’s goods were removed from the suit premises pursuant to the orders given on 11th June 2020 in Tribunal case No. 593 of 2020 and kept in safe custody of the Landlord thereby incurring further costs of Kshs.269,000/- by the date of filing the affidavit.

15. The Respondent filed a preliminary objection dated 5th February 2021 to the effect that this Tribunal had no jurisdiction to hear and determine the matter as there was no Landlord and Tenant relationship in existence.

16. It is the Respondent’s case that the applicant’s case is frivolous, vexatious, bad in law, lacks merit and incompetent and ought to be struck out with costs for being an abuse of court process.

17. The applicant filed a supplementary affidavit denying that he had knowledge of Nairobi BPRT No. 593 of 2020. He deposes that he was never served with the said case pleadings and that the entry and repossession of the suit premises by the respondent was unlawful.

18. He denies owing the sum of Kshs.91,000/- in rent arrears and Kshs.269,000/- in storage and security of goods costs.

19. I am called upon to determine whether the Applicant/Tenant is entitled to the orders sought in his application dated 22nd September 2020.

20. I am also supposed to determine who is liable to pay costs of the said application.

21. There is no dispute that the Landlord/Respondent filed Nairobi BPRT No. 593 of 2020 wherein final orders were given against the Tenant/Applicant.

22. Pursuant to the said orders, the Tenant’s/applicant’s goods were removed from the demised premises and have been in custody of the Landlord/Respondent.

23. The said orders have not been set aside and as matters stand, there is no application seeking to set the same aside by the Tenant/Applicant.

24. Although the Tenant/Applicant deposes that his removal from the suit premises was unlawful, the same was made pursuant to the Tribunal order made on 11th June 2020.

25. The said order of possession was made pursuant to section 12(1) ( e) of Cap. 301. It cannot therefore be deemed to be an illegal eviction.

26. Even after learning about the said case and order, the Applicant/Tenant has not moved the Tribunal to set aside, vary or otherwise review the said order and it amounts to abuse of court process to insist on prosecuting the instant suit.

27. The Landlord/Tenant relationship having come to an end by dint of repossession of the suit premises pursuant to the orders given on 11th June 2020, this Tribunal has no longer any jurisdiction to continue entertaining the proceedings herein.

28. The parties are at liberty to institute proceedings in an ordinary suit before the subordinate court to agitate their respective claims against each other in respect of alleged rent arrears, storage & security costs and release of the goods held pursuant to orders issued on 11th June 2020 in BPRT No. 593 of 2020.

29. In the premises, I make the following orders:-

(a) The application dated 22nd September 2020 is hereby dismissed with costs for want of jurisdiction.

(b) The parties are at liberty to institute appropriate proceedings before the Subordinate court in respect of the alleged rent arrears, storage and security costs as well as release of the goods held by the Respondent pursuant to orders of 11th June 2020 in BPRT No. 593 of 2020.

(c) The costs of the application assessed at Kshs.25,000/- are awarded to the Respondent/Landlord.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 14TH DAY OF SEPTEMBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In presence of:-

Mr. Mulinge for the Respondent/Landlord

Mr. Mutinda for the Applicant/Tenant