[2024] KEBPRT 62 (KLR)

Minage v Namulala (Tribunal Case E128 of 2022) [2024] KEBPRT 62 (KLR) (12 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 62 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E128 of 2022

Andrew Muma, Ag. Chair

January 12, 2024

Between

Eunice Minage

Applicant

and

Naomi Namulala

Respondent

Ruling

A. Parties And Their Representatives 1. The Applicants, Eunice Minage is the tenant in the suit premises located at Bungoma Town opposite the Governor’s office.

2. The firm of M/S Ateya & Company Advocates represents the Applicant in this matter.

3. The Respondent, Naomi Namulala, is the Landlady and the owner of the suit premises.

4. The firm of J.B Otsiula & Associates represents the Respondent in this matter

B. Background Of The Dispute 5. On 5th December 2022, the Applicants filed Reference and a Notice of Motion Application seeking Orders; that the Application be certified as urgent and service thereof be dispensed with, that the Landlord be ordered to re-open the suit premises and that the Landlord be ordered to pay KShs. 10,000. 00 per day being loss of earnings for the period that the premises had been locked.

6. Having considered the Tenant’s Application, the Tribunal issued Orders dated 6th December 2022 ordering the Landlord to re-open the suit premises, and that the Tenant serves the Landlord for inter-partes hearing on 5th January 2023.

7. The Landlord in response to the Application filed a Replying Affidavit dated 31st October 2023 opposing the Tenant’s Application.

C. Tenant’s Case 8. That the tenant Application is based on the grounds that she entered into a tenancy agreement with the Landlord where she agreed to pay a monthly rent of KShs. 7,000. 00, which she has been paying to the Landlord without delay.

9. She states that the Landlord unlawfully and without justifiable cause locked the suit premises on 5th May 2022 with her business goods, assorted clothes, M-pesa mobile phone with float and other items stored therein worth KShs. 400,000. 00.

10. In her Supporting Affidavit dated 5th December 2022, the Tenant avers that closure of the suit premises occasioned her loss as she her daily income was KShs. 10,000. 00 which the Landlord should pay from the date of closure until the determination of this suit.

D. Landlord’s Case 11. The Landlord deposed that she entered into a tenancy agreement with the Tenant on 3rd March 2019 valid for two years. She further avers that the said lease expired in March 2021 but the Tenant continued to be in occupation of the suit premises.

12. The Landlord submits that the Tenant has not been paying rent and is currently in rent arrears amounting to KShs. 140,000. 00. The Landlord states that she had learnt that the suit premises had remained closed for four months and that the Tenant had been secretly opening the business and removing goods therein. This necessitated her to lock the premises as she had the impression that the Tenant was evading the accrued rent arrears.

13. The Landlord further submits that she was not properly served with the Order of the Tribunal dated 6th December 2022 and that the Tenant just showed up to break into the premises pursuant to a subsequent Order of the Tribunal dated 13th September 2023.

E. Jurisdiction. 14. This Tribunal is properly clothed with jurisdiction and the same has not be disputed by either party to these proceedings.

F. Issues for Determination 15. I have carefully perused all the pleadings and evidence presented before this honourable Court by the parties. It is therefore my respectful finding the two issues that fall for determination by this Tribunal are:a.Whether the Tenant should be compensated for loss of business incurredb.Whether the Tenant is in Rent arrears

G. Analysis of Issues In View Of The Law a. Whether the Tenant should be compensated for loss of business incurred 16. The Tenant claims that the Landlord locked the premises on 5th May 2023 and that the Landlord did not open the same despite being served with a Court Order dated 13th September 2023. While I am convinced that the suit premises was locked on 5th May 2023, I fail to understand why it took her too long to have the matter addressed before this Court.

17. I have perused the Tenant’s inventory and I note that the goods in the premises were worth KShs. 2, 870,830. 00. However, I note that the Tenant had earlier on indicated the business goods in the premises are worth KShs. 400,000. 00 and stated that she had a daily income of KShs. 10,000. 00.

18. Despite having filed the Inventory of goods in the premises at the time of the break in, the Tenant has not provided any evidence to prove that she made a daily income of KShs. 10,000. 00.

19. It is trite law that special damages must be specifically pleaded. I am guided by the decision of the Court in Karanja Muchiri v Protcal &Allan East Africal Limited Hccc (Busia) No. 48 of 2004 where Hon Msagha J. held:“The plaintiff’s claim is for special damages which, in addition to the same requiring to be specifically pleaded, must be proved.It is not enough for a party to plead figures then in evidence place them before the court and say this is my claim. Evidence is required to persuade the court why it should believe that party and disbelieve the other. The plaintiff has come out as an inconsistent litigant without any or adequate evidence to persuade this court to find in his favour.”

20. There is no sufficient evidence before this Court to determine whether the Tenant was indeed making KShs. 10,000. 00 daily and therefore, cannot determine the damages suffered during the period which the suit premises were locked.

b. Whether the Tenant is in Rent arrears 21. The Tenant has attached receipts dated 5th May 2023 indicating that she paid KShs. 14,000 and KShs. 21,000. However, she has not indicated the period for which the said amount was paid.

22. The Landlord submits that the rent paid was to clear outstanding arrears and that the Tenant has not produced any evidence to prove that she is up to date with the rent payment.

23. I note that since 5th May 2022, the Tenant has not paid any rent to date. In the circumstances, I find that the Tenant is in arrears from 5th May 2022 to date amounting to KShs. 140,000. 00.

H. Orders 24. In the upshot, the Tenant’s Reference and Application dated 5th December 2022 is hereby dismissed in the following terms:a.The tenant to pay outstanding rent arrears in the sum of KShs. 140,000. 00 by 31st January 2024, failure to which the Landlord shall distress for rent and take back vacant possession.b.Each party to bear their own costs.

RULING DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JANUARY 2024 IN THE ABSENCE OF THE PARTIES.HON. A MUMAAG CHAIR/MEMBERHON JACKSON ROPMEMBERBUSINESS PREMISES RENT TRIBUNAL