[2021] KEBPRT 37 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 773 OF 2020 (NAIROBI)

MARION MIROYO…………………………….…….…………TENANT/APPLICANT

VERSUS

SUSAN WANGODU…………………...……………..LANDLORD/1ST RESPONDENT

NEWTON BUNU…………………..….…….……………..AGENT/2ND RESPONDENT

GACHAMA VIRGINIA……………….….……….CARETAKER/3RD RESPONDENT

RULING

1. The Tenant’s/Applicant’s application dated 21st August 2020 seeks the following prayers;

a. Spent.

b. That the Landlord allows the Tenant to continue with his business without interruption and to reopen the same.

c. That the Landlord be restrained from in any manner whatsoever or howsoever interfering with the Applicant’s quiet possession and lawful enjoyment of the suit premises at Zimmerman.

d. That the OCS Dandora Police Station to assist in compliance with the orders.

2. The application is supported by the affidavit of Marion Miroyo, the Tenant and which I summarize as follows;

a. That the Tenant pays a monthly rent of Kshs 10,000/- per month for her business premises at Kariobangi South.

b. That the Respondents have illegally locked the Tenant’s business premises with an intention of evicting the Tenant.

c. That the Tenant has heavily invested in the suit premises.

3. The application is opposed. The 2nd Respondent has sworn a replying affidavit which I summarize as follows;

a. That the 1st Respondent is the owner of the suit premises and the 2nd Respondent is the 1st Respondent’s agent.

b. That the suit premises are not at Zimmerman as stated by the Applicant.

c. That the supporting affidavit has been sworn by one Euphrasia Dyuma Hevete who is a stranger to the 2nd Respondent.

d. That the Tenant has not disclosed that she is in rent arrears for March 2020 to August 2020 amounting to Kshs 60,000/-.

e. That the Tenant has converted the business premises from cosmetics to wines and spirits without the consent from the relevant authorities.

f. That the Tribunal ought to order the Tenant to pay rent arrears amounting to Kshs 150,000/- failing which the Respondent ought to be granted leave to levy distress.

g. That the Tenant is a flight risk.

h. That the Tenant’s motion has no merits and the same should be dismissed.

4. The Tenant’s submissions may be summarized as follows;

a. That the Tenant has established a prima facie case as defined in the Mrao case.

b. That the tenancy herein being a controlled tenancy, the Respondent was required to issue the notice specified under section 4(2) of Cap 300.

c. That it is not true that the Tenant is not paying rent. She has annexed to her affidavit receipts of rent payment in recent times.

d. That the Tenant has denied that she has changed her business.

e. That the Tenant has developed the suit premises at a high cost and she stands to suffer loss and damage if her application is not allowed.

f. That the Tenant has failed to pay her rent due to the hard economic times brought about by corona.

g. That the Tenant claims to have paid rent on 8th May 2021, 1st April 2021, 2nd May 2021.

5. The Respondent’s submissions may be summarized as follows;

a. That the Tenant/Applicant did not disclose that she had rent arrears when she filed the application.

b. That as at 18th June 2021, the rent arrears stood at Kshs 150,000/-.

c. That the Landlord has a right to distress for rent.

6. The only issue for determination in this application is whether the Tenant is entitled to the orders sought in his application. The relationship between the Tenant and the 1st Respondent is not governed by a written lease agreement. The tenancy therefore is a controlled one and therefore governed by the provisions of Cap 301 of the Laws of Kenya.

7. It is not clear from the rival statement made in the respective parties’ affidavits who is talking the truth as far as the closure of the Tenant’s business premises is concerned. The Tenant/Applicant at paragraph 3 of her affidavit states that the Landlord locked the premises with the sole intention of evicting the Tenant.

8. On the other hand, the 2nd Respondent states at paragraph 8 of his affidavit that the Tenant lied to the Tribunal that the Respondent had locked the suit premises. Without more, this remains the word of the Tenant against that of the Landlord’s agent.

9. But going to the reference filed by the Tenant and dated 21st August 2020, the Tenant’s complaint is in the following terms;

“The Landlord wants to evict me illegally and his (sic) using his employees to harass me in the said suit premises.”

10. The Tenant’s reference makes no mention of the Landlord locking her out of the suit premises, if indeed his premises had been locked illegally by the Landlord, one would have expected that event to be part of the Tenant’s complaint. As things stand, it is more probable than not that the premises was indeed locked.

11. The Landlord seems to be only interested in the recovery of the rent arrears owed to her by the Tenant/Applicant. I have not seen any evidence of the Landlord’s desire to evict the Tenant.

12. I am unable to determine from the pleadings the amount of rent owed to the Landlord by the Tenant as I am also unable from the pleadings to determine how much rent has been paid by the Tenant to the Landlord.

13. In the premises and pursuant to the provisions of section 12(e) of Cap 301 I make the following orders;

a. That each of the parties will file a statement of accounts showing the rent paid by it or to it within the next twenty-one days.

b. That this matter will be mentioned on 11th January 2022 for further orders.

c. That the Tenant will continue to pay rent to the Landlord at the rate of Kshs 10,000/- per month.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this10thday of December, 2021in the absence of the parties.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL