[2021] KEBPRT 292 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 11 OF 2021 (MOMBASA)

MICHAEL MURAYA MBUGUA.................LANDLORD/APPLICANT

VERSUS

ARCHIPAS MWAKIDOE..............................TENANT/RESPONDENT

RULING

1. The Landlord’s/Applicant’s notice of motion dated 11th January 2021 seeks the following orders;

a. Spent.

b. That this honourable court do grant leave to the Landlord to demand the rent arrears from the Tenant/Respondent vide stalls premises situated in Kongowea Nyali, Mombasa County therein so as to recover accrued rent amounting to Kshs 4,654,700/- plus costs and charges as it shall be calculated.

c. That in the alternative and without prejudice to the foregoing, an order for the eviction of the Respondent from the suit property to wit, stalls located at Kongowea Nyali and delivery of vacant possession thereof be granted to the Applicant henceforth.

d. The OCS Nyali Police Station to provide security and maintain peace and order.

e. Costs.

2. The application is based on the grounds;

a. That the Respondent is in rent arrears to the tune of Kshs 4,654,700/- as at January 2021.

b. That the rent continues to accrue at the rate of Kshs 95,000/-per month.

c.That the Respondent has defaulted in rent payment since March 2014.

d. That the Applicant now needs the premises vacated in order to “get proceeds” from his investments.

3. The affidavit in support of the application may be summarized as follows;

a. That the Tenant is in rent arrears amounting to Kshs 4,564,700/- as at January 2021 and rent continues to accumulate at the rate of Kshs 95,000/- per month.

b. That the rent has been outstanding since March 2014.

c. That the Applicant ought to be given vacant possession of the suit premises in the circumstances.

4. The application is opposed. The Tenant/Respondent has sworn an affidavit which I summarize as follows;

a. That the application is ridiculous and most unfortunate one that he has ever encountered in his life.

b. That he became the Respondent/Tenant in the year 2014 at a monthly rent of Kshs 30,000/- which rent the Respondent has been diligently paying.

c. That the Landlord has persisted in harassing the Respondent/Tenant.

d. That no notice raising the rent fromKshs 30,000/-to Kshs 95,000has even been served by the Landlord to the Tenant.

e. That the Tenant is not in any arrears but has instead overpaid his rent, the Tenant having paid (as at January 2021) the sum of Kshs 3,015,000/- against the due sum of Kshs 2,490,000/-.

f. That rent adjustment cannot be done without involving the Tenant.

g. That a study of the Landlord’s only annexture to his supporting affidavit shows the following;

i. In the year 2014, the rent agreed between the parties was Kshs 30,000/-.

ii. In the same year (2014) and without notice to the Tenant, rent was increased to Kshs 70,000/- and then Kshs 110,000/.

iii. In 2015 – 2018rent was lowered to Kshs 95,000.

iv. In 2019, the rent was raised to Kshs 110,000/-.

v. In 2020, rent was lowered to Kshs 108,3000/- and again lowered to Kshs 74,000/- in the same year.

vi. In 2021 it was once again raised to Kshs 74,500/-.

h. That the Landlord is harassing the Tenant with a view to elbowing the Tenant out of the business premises.

5. The Landlord’s further affidavit, filed with leave of the Tribunal may be summarized as follows;

a. That on 1st March 2014 the Tenant rented one stall at Kshs 30,000/- per month.

b. That the Tenant is in occupation of three stalls at the rate of Kshs 30,000/- per month per store.

c. That on 1st March 2014 the Tenant rented one stall for Kshs 30,000/. On 1st July 2014, the Tenant rented a second stall for Kshs 40,000/. On 3rd October 2014, the Tenant rented a third store for Kshs 30,000/- making the total payable rent Kshs 100,000/-.

d. That on his request, the Tenant was allowed a Kshs 5,000/- discount making the rent payable Kshs 95,000/-.

e. That the increament of rent to Kshs 110,000/-in 2019was as a result of the increase of value added tax to 16%.

f. That the decrease of rent payable to Kshs 108,300/-per month in 2020 was as a result of the value added tax coming down to 14%.

g. That on 1st October 2020, rent came down to Kshs 74,100/- because the Tenant terminated his lease for one of the stalls.

6. As at the time of writing this ruling, only the Landlord had filed his submissions. I proceed to summarize the same as follows;

a. That it is not disputed that the Respondent is a Tenant of the Landlord.

b. That the Landlord merits the orders he has sought because his affidavit evidence is uncontroverted.

c. An examination of the uncontroverted evidence given by the Landlord in his further affidavit is corroborated by the invoice produced as exhibit 1.

d. The Tenant has not challenged the averments in the Applicant’s further affidavit.

e. That the Tribunal has powers to issue the orders sought.

f. That the Tenant has not controverted the Landlord’s evidence that he leased more than one store.

g. That the Tenant has not proved that he has made any over payments in respect of rent payable to the Landlord.

7. The issues that arise for determination, in my view are the following;

a. Whether the tenancy between the parties herein is a controlled tenancy.

b.Whether the Tenant is in rent arrears to the tune of Kshs 4,654,700/.

c. Whether the Landlord increased rent payable without notice of the said increment to the Tenant.

d. Whether the Tenant has overpaid the rent due to the Landlord.

e. Whether the Landlord is entitled to the orders sought in his application.

8. On Issue No. (a)

a. The supporting affidavit sworn by the Landlord/Applicant only states that the Tenant has defaulted in paying rent since 1st March 2014. The Tenant’s replying affidavit indicates that the Tenant started a Landlord/Tenant relationship in the year 2014on terms of a monthly rent of Kshs 30,000/-.

b. Both parties are silent on whether the lease agreement was in writing and are further silent on the duration/term of the said lease.

c.In the absence of such evidence, I do hold that the tenancy between the parties herein is not in writing and is therefore a controlled tenancy as defined under section 2 of Cap 301 of the Laws of Kenya.

9. On Issue No (b);

a. The Applicant/Landlord seeks to recover the sum of Kshs 4,654,700/- as rent arrears from the Tenant. The Landlord has stated in his application that the Tenant has defaulted in paying rent since 1st March 2014. That is the date that the Tenant alleges to have entered into a tenancy arrangement with the Landlord.

b. The rent payable per month according to the Landlord is Kshs 95,000/-while the Tenant has stated that the rent payable is Kshs 30,000/- per month.

c. From the statement annexed to the Landlord’s supporting affidavit, it shows that since 1st March 2014, the Tenant has made several payments which are credited and it would therefore not be correct to state that the rent has been owing since 1st March 2014.

d. The Tenant has stated that he is a stranger to the allegation that the rent herein is accruing at the rate of Kshs 95,000/- per month as the only rent he is aware of is at the rate of Kshs 30,000/- per month.

e. The Landlord on the other hand has explained that the increment in rent from 30,000/-to Kshs 100,000/= was as a result of the Tenant renting a second and third stall on 1st July 2014 and 1st October 2014 respectively. The Landlord has further stated that the rent came down to Kshs 74,400/- per month when the Tenant gave up his tenancy for one of the stalls.

10. I am unable at this juncture in these proceedings to determine conclusively what is the rent owing from the Tenant to the Landlord if any. The Tenant has not admitted to renting more than one stall and neither has the Landlord provided any evidence that the Tenant indeed rented more than one stall.

11. I am also unable to determine at this stage, without more, whether the rent of Kshs 30,000/- that the Tenant admits to be the monthly rent is rent for one stall or three stalls. I do not find the statement annexed to the Landlord’s affidavit as sufficient evidence to answer the above concerns.

12. It would therefore be prudent to subject these matters to a full hearing where the evidence of the parties may be tested on cross-examination and production of the relevant documents.

13. On issue No. (c) and (d);

a. The Landlord seems to state that the rent was not increased but the Tenant rented out two more stalls thus the total rent payable increased as such. Like I have stated before, if I were to believe the Tenant, then it would appear that rent was increased beyond the Kshs 30,000 the Tenant was paying.

b. On the other hand, if I were to believe the Landlord, then the rent was not increased as each store had its own rates. These conflicting positions cannot be determined by way of affidavit evidence and also calls for a full hearing of the reference by the Landlord. It would also be difficult to determine at this stage whether the Tenant has indeed overpaid his rent to the Landlord and if so, far what reason.

14. On issue No (e);

a. The Landlord’s prayer to the Tribunal to be allowed to demand rent arrears amounting to Kshs 4,654,700 is not tenable at this stage for the simple reason that the amount outstanding (if any) is in dispute. The number of stalls the Tenant is said to have rented out is also not clear in view of the rent paid by the Tenant at the commencement of the lease and the subsequent increment of rent as shown in the statement annexed to the supporting affidavit of the Landlord.

b. Likewise, the prayer for vacant possession cannot be granted at this stage for the same reasons advanced in the foregoing paragraphs.

15. Consequently, the Landlord’s application dated 11th January 2021 is dismissed with no orders as to costs.

16. I further order that the reference herein be fixed for hearing on a priority basis.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered by Hon Cyprian Mugambi Nguthari this 17thday of September 2021 in the absence of the parties.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL