[2025] KEBPRT 208 (KLR)

Mghanga v Mohamed (Tribunal Case E016 of 2024) [2025] KEBPRT 208 (KLR) (28 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 208 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E016 of 2024

CN Mugambi, Chair

March 28, 2025

Between

Anthony Mghanga

Tenant

and

Kibibi Mohamed

LandLady

Ruling

Introduction 1. The Tenant’s Reference to the Tribunal dated 11. 1.2024 is brought under Section 12(4) of Cap 301 and the Tenant’s Complaints may be summarized as follows;-a.That on 4. 12. 2023, the Landlord locked the suit premises by superimposing her padlock at the doors of the suit premises.b.That at the time the Landlord locked the premises, the Tenant had restocked pharmaceutical goods worth Kshs. 120,000/=.

2. The Tenant has in view of his Complaints, sought orders that the Landlady be compelled to re-open the suit premises and that the Landlady be compelled to pay for the damaged goods and the loss incurred since the business was closed.

3. In the course of the proceedings, the Landlady was compelled to re-open the suit premises and the prayers that remain to be determined are therefore the issues of compensation to the Tenant for the period that the premises remained locked and for the alleged damage to the Tenant’s goods.

The Tenant’s case 4. The evidence of the Tenant in support of his case may be summarized as follows;-a.That he runs a pharmacy shop at Mtopanga in the name and style of Wayside Chemist.b.That the Landlady in this matter closed the shop on 4. 12. 2023 and the closure was without notice.c.That the Tenant pays monthly rent of Kshs. 5,500/=.d.That although the Tenant had rent arrears of Kshs. 4,000/= for the month of November by the time of this testimony, he had no rent arrears.e.That the Tenant’s daily sales amounted to Kshs. 6,320/= as shown in document No. 3 in the Tenant’s list of documents dated 16. 4.2024. f.That the shop was closed for eight months and on the date the shop was opened, the parties carried out an inventory as shown in the Tenant’s document No. 1 in his list of documents.g.That the Landlady refused to sign the inventory.h.That the inventory had expired drugs valued at Kshs. 63,650/=.i.That the Tenant therefore desires orders for compensations for the expired drugs, loss of business and costs of the suit.j.The Tenant’s statement and documents were respectively produced as the Tenant’s evidence.

3. Upon cross examination by the Landlady the Tenant’s responses may be summarized as follows;-(a)That the Tenant took up the premises from the Landlady.(b)That document No. 1 in the list of documents dated 17. 7.2024 is handwritten.(c)That the Tenant took down in writing all the drugs in the store.(d)That the Tenant sued the Landlady because he has no lease agreement with the agent.

The Landlady’s Case 5. The evidence of M/S Kibibi Mohamed may be summarized as follows;-a.That she has filed her statement dated 3. 5.2024 and a further affidavit sworn on 4. 10. 2024. b.That the Tenant told the Landlady that the expired drugs were in cartons.c.That it is the agent who closed the suit premises on account of non-payment of rent.d.That it is not possible for the Tenant to have been making Kshs. 6,320/= per day and if he was making such kind of money, then he ought to have been able to pay rent.e.The Landlady produced her statement and her further affidavit in support of her case.

6. When cross examined by Counsel for the Tenant, the Landlady confirmed that the suit premises had been locked up for non-payment of rent and that it was the agent who locked the premises.

7. The Landlady further stated that she neither knew when the suit premises were locked neither did she know if the Tenant had been issued with any notice before the premises were locked.

8. It was the Landlady’s further response that the Tenant did not owe her any rent.

9. The Landlady’s 2Nd Witness M/s Aliet Savako’s testimony may be summarized as follows;-a.That the Landlady engaged them in September 2023 and by October 2023, the Tenant was not paying rent.b.That while she was on leave, the Tenant called her on 27. 12. 2023 and informed her that her officers had closed down the suit premises.c.That on the same date, she called one Mr. Moses and told him to re-open the premises, Moses confirmed that he had complied by opening the premises.d.In February 2024, the Landlady informed the witness that the premises had been left wide open and that there was no-one therein; the witness then went to the premises and closed the same.e.In February, Anthony called the witness and told her that his friend’s items were in the premises, he then sent his friend and an elder to pick a briefcase from the premises though he did not personally come to the premises.f.That in March 2024, the Tenant was invited by an officer from the Tenant’s office to avail himself for the re-opening of the premises but he declined and instead chose to file the present suit.g.That the drugs listed on the handwritten list and the ones in the typed list are different.h.That the Tenant is in rent arrears of Kshs. 39,900/=.

10. Upon cross examination by Counsel for the Tenant, the responses by the witness may be summarized as follows;-a.That she has the authority of the Landlady to act in this matter.b.That the Tenant was given a lease agreement to sign but never returned the same.c.That she does not work with the Pharmacy & Poisons Board.d.That the Tenant was not issued with any notice before the premises were closed on 27. 12. 2024. e.That she does not know when the shop was closed.f.That she has filed the Landlady’s rent statement regarding the Tenant.

11. The Landlady’s 3Rd Witness Mr. Juma Amumba’s Evidence may also be summarized as follows;-a.That he is a businessman and village elder.b.That he has filed his statement dated 25. 9.2024. c.That on 16. 7.2024, he was called by the Landlady to visit the suit premises.d.That the Landlady told him that she had been ordered to open the premises.e.That the witness was joined by the Tenant, the Landlady, one SAID and a cousin to the Tenant and an agent from Elegant Investments.f.That the premises was broken into in his presence.g.That the Tenant recorded all the drugs that were in the store in a piece of paper.h.That the Tenant told him that the drugs in a carton on the floor were expired drugs and the witness then left.

12. Upon cross examinatio by Counsel for the Tenant, the witness confirmed that the parties had a rent dispute and that the Tenant was also claiming that the suit premises had been locked.

13. The witness upon further cross examination, stated that he did not know how much rent was in dispute.

14. The witness further stated that the padlock which was on the door when he visited the premises belonged to Elegant Investments, the agents of the Landlady managing the suit premises.

15. The witness confirmed that the inventory which was taken in his presence was the one to be found in document No. 1 in the list of documents dated 17. 7.2024.

16. The Evidence Of The Landlady’s 4Th Witness Said Shaban Bongo may be summarized as follows;-a.That he has filed witness statements dated 25. 9.2024 and 19. 4.2024. b.That in February 2024, the Tenant requested to have the premises opened so that one Mr. Hassan retrieves his briefcase.c.That the agent came and opened the premises as the lock on the door belonged to the agent.d.That Hassan took his briefcase and the agent thereafter locked the premises.e.That on 16. 7.2024, the witness was again called to the suit premises and went there in the company of Juma, the Landlady and there was also a representative from Elegant Investments, the agents.f.That the agent opened the door to the suit premises and the Tenant took an inventory in the presence of all parties mentioned above.g.That the Tenant did not list the drugs that he said had expired.h.That no one signed the inventory.

Analysis and determination 17. The issues that arise for determination in this case are in my view the following;-a.Whether the Landlady and/or her agents illegally closed the suit premises and for how long, and if the answer is in the affirmative, whether the Tenant is entitled to loss of business for the period that the premises remained closed?b.Whether the Tenant is entitled to compensation for the alleged damaged goods?c.What orders ought to be made in this suit.

Issue A: Whether the Landlady and/or her agents illegally closed the suit premises and for how long, and if the answer is in the affirmative, whether the Tenant is entitled to loss of business for the period that the premises remained closed? 18. The Tenant has stated in his evidence that the suit premises was locked by the Landlady or her agents on 4. 12. 2023. According to the statement of the Landlady, her agents in February 2024 informed her that they had discovered that the business premises had not been locked and had to lock the suit premises to safeguard the goods therein. Aliet Savako, the manager of the agency that manages the suit premises confirmed that the Landlady informed her that the premises were wide open and she sent someone to close the said premises. The witness also states that in the same month, she had the premises opened to allow one Mr. Hassan to collect his briefcase.

19. It would appear that after February 2024, the next time the suit premises was opened was on 16. 7.2024 in the presence of witnesses when an inventory was carried out. There is evidence that when the suit premises was opened on 16. 7.2024, the Tenant’s drugs were in the premises and an inventory of the same was taken. This would also mean that the drugs were all along at the chemist and it is therefore not conceivable that the Tenant carelessly left the premises wide open exposing his goods to all manner of damages and to which the Landlady and her agents had to come and lock the premises to salvage the goods. The Landlady and her agents also do not state whether they sought to inform the Tenant that his premises was open and unattended. It is also the evidence of the Landlady that the suit premises was locked by the agent on a date the Landlady cannot tell on account of rent arrears.

20. Further, the Tenant consistently complained of the Landlady’s non-compliance with the court orders issued on 18. 3.2024 wherein the Landlady was ordered to re-open the suit premises and which led to the Tribunal to issue its orders of 12. 6.2024 requiring the OCS, Mwatamba/Kadzandani to assist in the enforcement of the orders.

21. On 16. 7.2024, the court further ordered the parties to visit the suit premises for purposes of compliance with the court orders. When the matter came up for mention on 17. 7.2024, the Landlady confirmed that she had re-opened the suit premises.

22. I am in the circumstances persuaded that indeed the Landlady and her agents closed down the suit premises on 4. 12. 2023 and opened the same on 16. 7.2024. It is my finding also that the said closure of the Tenant’s premises between 4. 12. 2023 and 16. 7.2024 was illegal and contrary to the express provisions of Section 4 of Cap 301 as it amounted to an illegal attempt to terminate the tenancy. If the Landlady was desirous of recovering any rent arrears, then all she had to do was to comply with the procedure provided for under Cap 293 of the Laws of Kenya (The Distress for Rent Act).

23. The Tenant has alleged that he was making daily sales of Kshs. 6,320/= as shown in document No. 3 in the list of documents dated 16. 4.2024. I have seen the said document which shows the daily sales of Wayside Chemist situated at Bamburi Kwa Bulo. I do note that the chemist subject matter of these proceedings is located at Mtopanga. The Landlady’s witness clearly stated that the Wayside Chemist at Bamburi was not in dispute in these proceedings. The list of daily sales only indicates the month and the total sales. It does not provide any supporting evidential material on the basis of what the total sales is arrived at but only posts figures. I am therefore not convinced that this particular aspect, being one for special damages has been specifically proved. I am also of the view that a random sample of the sales would have sufficed instead of the reliance placed on the one month of August 2023. Issue B: Whether the Tenant is entitled to compensation for the alleged damaged goods?

24. The Tenant has sought compensation for the drugs he alleges had expired. The Tenant in support of this claim has produced an undated list which shows the total cost of the expired drugs to be Kshs. 63,650/=. At the vary outset, the Tenant did not produce any evidence to show that the drugs existed, and if they did, that indeed they were expired. At the very least, one would have expected a report from the Pharmacy & Poisons Board detailing which of the drugs in the chemist had expired and also establishing whether they had expired before or after the closure of the Tenant’s business. I do also note that in his evidence Mr. Juma Amumba, the Landlady’s 3rd witness told the court that on 16. 7.2024 when they visited the suit premises, the Tenant told them that the drugs in the carton which was on the floor were expired drugs. This evidence is also supported by the evidence of Mr. Said Shaban Bongo the Landlady’s 4th witness. This evidence raises the crucial question, if the Tenant did not have access to the premises up to 16. 7.2024, at what point did he sort out the expired drugs and place them in a carton which was found on the floor of the suit premises?

25. I am not therefore able to find any evidence that indeed there were any expired drugs and even if there were any, there is no evidence to show when the same expired and even again if that were possible, there is no evidence from any credible source to establish the value of the said drugs.

26. Consequently, the Tenant’s claim for compensation on account of the alleged expired drugs is not sustainable.

Issue C: What orders ought to be made in this suit. 27. I have already found that the closure of the Tenant’s business from 4. 12. 2023 to 16. 7.2024 was illegal. The Landlady and her agents have confirmed that they were responsible for the said closure. Consequently, it is my finding that the Landlady is not entitled to any rent from the month of December 2023 to July 2024, a period of eight months. This means that the Tenant’s rent due is to be calculated less the rent for the eight months aforesaid.

28. In disposing of this matter and following from the above findings, I do make the following orders;-a.That the Tenant’s claim for loss of business is not proved and the same is dismissed.b.That the Tenant’s claim for compensation on account of the alleged expired drugs is not proved and is dismissed.c.That the Landlady is not entitled to any rent from the month of December 2023 to July 2024 when the suit premises remained illegally closed.d.That the rent due to the Landlady is to be calculated while taking into account the rent not payable for the months of December 2023 to July 2024. e.Each party will bear their own costs.f.This file is closed on those terms.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF MARCH, 2025HON. CYPRIAN MUGAMBI - CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Ms. Amugune for the Tenant and in the absence of the Landlady