[2021] KEBPRT 459 (KLR)
The tribunal found that the lease agreement between the parties did not provide for a rent charge for the common area, and therefore the landlord could not deduct alleged arrears for such use from the tenant's deposit. The tribunal also determined that the tenant was only liable for specific, proven charges: the...
Source-derived case information.
- Citation
- [2021] KEBPRT 459 (KLR)
- Parties
- Applicant: Leakey Maina Kariuki; Respondent: Eventide Park Limited
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 108 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Refund of Deposit and Related Claims
- Outcome
- application allowed in part; landlord ordered to refund deposit less proven deductions and pay costs
- Legal Topics
- Commercial Leases, Security Deposit Refund, Service Charge Disputes, Repair Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leakey Maina Kariuki
Applicant
Eventide Park Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Refund of Deposit and Related Claims
Legal Issues
- 1 Whether the landlord is entitled to deduct amounts from the tenant's deposit for alleged arrears, repairs, and other charges.
- 2 Whether the lease agreement provided for rent or charges for the common area.
- 3 Whether the tenant is liable for the cost of a broken water tank and a bounced cheque charge.
Ratio Decidendi
The tribunal found that the lease agreement between the parties did not provide for a rent charge for the common area, and therefore the landlord could not deduct alleged arrears for such use from the tenant's deposit. The tribunal also determined that the tenant was only liable for specific, proven charges: the cost of replacing a broken water tank (Ksh 33,000) and a bounced cheque charge (Ksh 1,020). The landlord's claims for repairs and service charge arrears were not substantiated as required by the lease agreement, and no proper valuation or invoicing was presented. Consequently, the landlord was ordered to refund the tenant Ksh 715,980, being the deposit less the two proven...
Court Disposition
application allowed in part; landlord ordered to refund deposit less proven deductions and pay costs
Orders
- The landlord is ordered to refund Ksh 715,980 to the tenant within 14 days.
- The tenant is awarded costs of Ksh 45,000.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO 108 OF 2021 (NAIROBI)
LEAKEY MAINA KARIUKI................................................TENANT
VERSUS
EVENTIDE PARK LIMITED.........................................LANDLORD
RULING
The Tenant/Applicant filed a reference on the 3rd February 2021 in opposition of the demand issued by the landlord to vacate the premises EVENTIDE PARK LIMITED, TITLE NO KABETE/KIBICHIKO 1873.
The tenant also filed a Notice of Motion application under Certificate of urgency on the same date 3rd February 2021 seeking injunctive Orders restraining the landlord/Respondent which orders were granted in the interim.
Subsequent to the said application being heard inter partes, the parties herein filed a myriad of other applications.
Both counsels however on two dates 16th March 2021 and 7th June 2021 agree that the only issue pending determination is the total sum refundable from the sum paid as deposit by the tenant.
There was an agreement on when and how the tenant would vacate the premises.
The landlord and tenant entered into a lease agreement with the commencement of the lease being the 15th March 2020 for a period of three years.
It is the tenant’s claim that he claims Ksh 750,000/= being deposit paid. It is not in contention that there was Ksh 750,000/= paid by the tenant to the landlord. The landlord does not dispute receipt of the said amount.
The landlord’s claim is that the tenant was in arrears of rent of Ksh 810,000/= for use of the common area (1000sq ft) for 9 months, Ksh 5,400/= service charge and Ksh 1,200/= arrears of service charge for the 1st quarter of 2021.
The landlord also claims Ksh 100,000/= for repairs (wear and tear), Ksh 5,000/=charges incurred for a bounced cheque and replacement of a broken water tank valued at Ksh 33,000/=
The tenant disputes the landlord’s assertions that he was in arrears. That he was not supposed to pay for the use of the common area and even put forth the argument that one of the landlord’s directors operated a butchery and also used the common area.
That it was not only for use by himself but by all the tenants. In fact, counsel for the landlord stated in his submissions on the 16th March 2021that the common area was subject to all the tenants in the premises. On the 7th June 2021 though, he changed his submissions and stated that the common area was only used by the tenant.
The landlord stated that repairs were carried out on the car wash. They had claimed Ksh 100,000/= but attached a statement with a figure of Ksh 125,100/= for recarpeting and repainting works. The tenant disputed this figure and repair works as no valuation was not done. They were also not involved as required.
As regards the arrears of the service charge, the tenant averred that no invoice for such arrears if any was raised.
I have looked at the documents filed by both parties.
I have had a chance to interrogate the lease agreement attached and signed by both parties.
From the submissions, documents filed and arguments fronted, I find thus:
a) That the parties herein entered into a valid agreement
b) That the tenant paid to the Landlord Ksh 750,000/= as deposit for the club which was supposed to be built (but was not) and for the carwash. Ksh 150,000/= expressly indicated at paragraph 12 of the agreement and Ksh 600,000/= agreed after entering into the agreement. All this confirmed by the parties.
c) That the lease agreement entered into by the parties did not provide for a rent charge for the common area. The premises offered to the tenant is contained in paragraph 3 of the agreement.
d) That paragraph 12 of the agreement provides how the deposit shall be refunded….’’refundable without interest to the tenant….’’
e) That paragraph 29 of the agreement provides on how and who shall do redecoration.
f) That the landlord incurred a charge of Ksh 1,020/= for the unpaid cheque.
g) That the tenant is obligated to replace a broken water tank valued at Ksh 33,000/=,
For the foregoing reasons and findings, I do make the following orders:
a) The landlord is hereby ordered to refund Ksh 715,980/= being the deposit paid less the charge for the bounced cheque and broken tank to the tenant within 14 days.
b) The tenant is entitled to costs of Ksh 45,000/=
HON PATRICIA MAY
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
Ruling dated, signed and delivered virtually by Hon Gakuhi Chege this 18thday of June 2021 in the presence of Kanyuira Advocate for the Applicant/Tenant and in the absence of the Respondent/Landlord.
HON GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL