[2025] KEBPRT 146 (KLR)

Michubu v Muchiri (Tribunal Case E1094 of 2024) [2025] KEBPRT 146 (KLR) (10 February 2025) (Ruling)

Neutral citation: [2025] KEBPRT 146 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1094 of 2024

J Osodo, Chair & Gakuhi Chege, Member

February 10, 2025

Between

Felix Gikundi Michubu

Applicant

and

Patrick Ng’ethe Muchiri

Respondent

Ruling

A. Dispute Background 1. The tenant/applicant moved this tribunal vide a reference under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301, dated 7th October 2024 with a complaint that the landlord has broken into his business premises and confiscated his tool of trade contrary to Cap 301 Laws of Kenya.

2. The tenant filed a notice of motion under a certificate of urgency dated 7th October 2024 in which he seeks the following orders; -i.That the application be certified urgent.ii.That the landlord be ordered to reopen the suit premises and reinstate the tenant, in default the tenant be allowed to break the locks and gain access under the supervision of O.C.S Ruaka Police Station.iii.That the landlord be ordered to allow the tenant unlimited access to the suit premises pending the hearing and determination of the case.iv.That the landlord be ordered to release the tenant’s tools of trade immediately and unconditionally pending the hearing and determination of the case.v.That the landlord be restrained from letting out the suit premises to another tenant pending the hearing and determination of the case.vi.That the landlord be restrained from interfering with the tenant’s peaceful occupation of the suit premises located in Ruaka pending the hearing and determination of the case.vii.That the O.C.S Ruaka Police Station do assist in compliance of the orders.viii.That the landlord be directed to account for all the goods and items carted away and maliciously damaged and to remedy or pay for any damaged or lost items estimated at KES. 588,210. ix.That the costs of the application be provided for.

3. The application is supported by an affidavit of even date in which the tenant/applicant deposes as follows; -i.That the applicant has been running his business at the suit premises paying monthly rent of KES. 15,000 and that the tenant paid a deposit of KES. 15,000. ii.That the tenant has been paying rent until when the landlord threatened to evict him without legal notice. Copies of proof of payment of rent are attached.iii.That the tenant reported the matter to the police and was issued with an O.B No. 19/16/8/2024 and was directed to the tribunal for redress.iv.That the landlord proceeded to confiscate the tenant’s tools of trade estimated at KES. 588,210. Copies of the list of tools of trade are attached.v.That the tenant bought the business premises from the previous tenant one Mr. Peter Njuguna and is yet to recover the good will. A copy of the goodwill is attached.vi.That the landlord has not issued any legal termination notice or court order.vii.That the tenant has no other source of income and is suffering huge losses since the suit premises were locked and tools of trade carried away.

4. On 8th October 2024, the court issued interim orders of injunction against the respondent/landlord pending inter-partes hearing on 24th October 2024.

5. At the court hearing on 24th October 2024, the tenant stated that the landlord had taken over the suit premises and had given the same to another tenant. The court issued further orders including prayers 2,3,4,5,6 and 7. Additionally, the court directed that the hearing in respect to prayer 8 (That an order directing the landlord to account for all the goods and items carted away and damaged estimated at KES. 588,210. ) to be on 18th November 2024.

6. The landlord/respondent filed an undated replying affidavit in which he deposes as follows; -i.That the entire application is false.ii.That no tenant/landlord relationship exists between the parties herein.iii.That the suit premises has since been occupied by another new tenant by the name Mercy Wairimu Mwaura who has paid rents for the months of September and October 2024. Copies of M-pesa rent payment and the tenancy agreement are attached.

7. The landlord filed an application dated 30th October 2024 in which he sought that the tribunal discharges or sets aside its ex-parte interim orders issued on 8th December 2024.

8. The application is supported by an affidavit of even date in which the landlord deposes as follows; -i.That the tenant in his application intentionally misinteprated and that the tenant failed to disclose to the tribunal that as at the time of filing the said application, he was nolonger a tenant at the suit oremises and that the premises had already been leased to a different tenant by the name Mercy Wairimu Mwaura who had taken possession of the suit premises on 14th August, 2024. That the orders sought are thus overtaken by events. A copy of the tenancy agreement dated 14th August 2024 is annexed as “PNM-2”.ii.That the tenant equally deliberately failed to inform the tribunal that out of the required cumulative rent of KES. 300,000, the tenant has only paid a sum of KES. 212,000. A copy of the tenant’s payment details is annexed as “PNM-3”.

9. The application is opposed by the tenant vide a replying affidavit dated 14th November 2024 in which the tenant deposes that the landlord illegally carted away the tenant’s tools of trade and ousted him from the suit premises.

10. The tenant filed a supplementary affidavit to the application dated 7th October 2024 which is dated 2nd December 2024 in which he deposes as follows; -i.That on 16th November 2024 the landlord released the goods he had carted away. A copy of the list of inventory recovered is annexed as “PGM-1”.ii.That out of the goods that were carted away, some goods were missing and some were no longer in working condition.

11. At the court hearing on 18th November 2024, the court directed that both applications be disposed of by way of written submissions.

12. The landlord filed a further affidavit dated 17th December 2024 in which he deposes as follows; -i.That the tenant does not deny that he failed to honor his primary obligation of paying rent in accordance to the tenancy agreement.ii.That the orders sought in the application dated 7th October 2024 have been overtaken by events since the suit premises has already been rented out to another tenant.iii.That the tenant through his supplementary affidavit sworn on 2nd December 2024 shows an inventory of good released back to the tenant but there is no evidence showing that the tenant owed more than what was released or that any of the released property was not in the condition it was before.

13. Both parties filed their written submissions with the tenant filing his dated 2nd December 2024 and the landlord filing his dated 17th December 2024. We shall consider both submissions as we deal with the issues for determination.

B. Issues for determination 14. The following are the issues for determination; -a.Whether the tenant is entitled to the orders sought in the application dated 7th October 2024. b.Whether the landlord is entitled to the order sought in the application dated 30th October 2024. c.Who shall bear the costs of the application?

Issue (a) Whether the tenant is entitled to the orders sought in the application dated 7th October 2024. 15. The tenant approached this tribunal seeking orders that the respondent re-open the suit premises, reinstate the tenant back to the suit premises and not to interfere with the tenant’s tenancy. The tenant also seeks to be compensated for all the goods and items carted away and damaged estimated at KES. 588,210.

16. The tenant later at the court hearing on 24th October 2024, stated that the landlord had taken over the suit premises and had given the same to another tenant.

17. The landlord in his affidavits does not deny the allegations above and proceeded to give evidence that he indeed rented out the suit premises to another tenant one Mercy Wairimu Mwaura. We have perused the tenancy agreement and copies of mpesa statements showing payment of rent by the new tenant.

18. Furthermore, we have perused the letter from the O.C.S Ruaka Police Station dated 18th November 2024 which indicates that at the time of execution of the tribunal’s orders, the suit premises had already been rented and occupied by another tenant as from 14th October 2024. Attached to the letter is the new tenancy agreement as well as photographs showing the new tenant running her business at the suit premises.

19. From the foregoing analysis, it is evident that the applicant is no longer a tenant at the suit premises and therefore there is no landlord/tenant relationship between the parties. Consequently, the orders issued by this tribunal with regard to the application dated 7th October 2024 have been overtaken by events.

20. Furthermore, by the time the tenant came to this tribunal, the actions sought to be stopped had already happened and we do not consider that the injunction sought in this matter is efficacious more so in absence of any demonstration that there exists any landlord/tenant relationship between the parties before this court.

21. As regards the compensation of Kshs 588,210/- claimed by the applicant, no attempt has been made to place any evidence before us as to how the amount is arrived at. The claim pleaded should strictly be proved in line with the decision in the case of Hahn v Singh (1985) eKLR.

22. In the premises, we are unable to hold that the tenant/applicant is entitled to the reliefs claimed under section 12(4) of Cap 301, Laws of Kenya which allows this tribunal upon investigation to make its own findings and order thereon as it deems fit.

23. It is trite law that he who alleges must prove. Indeed this is the tenor of section 107(1) of the Evidence Act, Cap 80, Laws of Kenya which provides as follows:-“107(1)whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.

24. Notwithstanding the fact that the tenant was illegally evicted from the suit premises, the orders sought have already been overtaken by events and the compensation claimed is not supported by any evidence, therefore we shall order that the application dated 7th October 2024 be dismissed with costs.

Issue (b) Whether the landlord is entitled to the order sought in the application dated 30th October 2024. 25. The landlord filed his application seeking that the tribunal sets aside its ex-parte interim orders issued on 8th October 2024

26. The landlord in his submissions states that the tenant did not reveal that he had failed to fulfil his rental obligations and that there was already another tenant at the suit premises at the time of filing his application.

27. We note that the tenant has not denied in his replying affidavit that he did not have any rent arrears as sworn by the landlord in his supporting affidavit dated 30th October 2024. This does not however justify the landlord’s illegal eviction of the tenant from the suit premises.

28. There being no tenant/landlord relationship between the parties, we shall order that the landlord’s application dated 30th October 2024 be allowed.

Issue (c ) Who shall bear the costs of the application? 29. As regards costs, the same are in the Tribunal’s discretion under Section 12(1)(k) of Cap. 301, but always follow the event unless for good reasons otherwise ordered. We shall order costs of the applications to the tenant because he was illegally evicted from the suit premises by the landlord.

C. Orders 30. The following orders commend to us; -a.The application dated 7th October 2024 is dismissed with costs of KES. 15,000 to the tenant.b.The reference dated 7th October 2024 is settled in the above terms.c.The application dated 30th October 2024 is allowed with no orders as to costs.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10TH FEBRUARY 2025HON. JOYCE AKINYI OSODO(PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGE(MEMBER)In the presence of:Monyangi for TenantNjoroge holding brief or Mr. Olaka for Landlord