[2022] KEBPRT 864 (KLR)

Muiruri v Sospeter (Tribunal Case E007 of 2022) [2022] KEBPRT 864 (KLR) (Civ) (20 December 2022) (Ruling)

Neutral citation: [2022] KEBPRT 864 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E007 of 2022

Andrew Muma, Vice Chair

December 20, 2022

Between

Margaret Wambui Muiruri

Applicant

and

Reginald Micheni Sospeter

Respondent

Ruling

1. The tenant/applicant Margaret Micheni Sospeter rented two rooms situate on LR No Muthambi/Igamurathi/1203 within Marima Shopping Centre, Muthambi Location in Tharaka Nithi County for a hotel business. (hereinafter known as the ‘tenant’)

2. The tenant represents herself in this matter.

3. The landlord/ respondent is the landlord and owner of two rooms situate on LR No Muthambi/Igamurathi/1203 within Marima Shopping Centre, Muthambi Location in Tharaka Nithi County rented out to the tenant (hereinafter the landlord).

4. The firm of Basilio Gitonga, Muriithi & Advocates represent the landlord in this matter.

The Dispute Background 5. On March 10, 2022, the tenant moved this tribunal by way of a notice of motion dated March 10, 2022 under certificate of urgency under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The tenant was seeking amongst other orders that pending the hearing and determination of the application that the tribunal order the landlord and its agents be jointly and severally restrained from harassing, evicting or interfering with the applicant’s peaceful enjoyment of the premises. The tenant also sought orders mandating the landlord to reconnect tap water and electricity and in default, the tenant be allowed to reconnect the same and deduct it from future expenses. The tenant also sought orders for the Kenya Power and Lighting Company be ordered to assist should the landlord not comply and The landlord be forced to open the toilet in the premises. Lastly, the tenant prayed that the Officer Commanding Station-Muthambi Police Station to oversee the implementation of those orders. Which orders the tribunal granted on March 16, 2022.

The Tenant’s Claim 6. The tenant filed a notice of motion application under certificate of urgency and supporting affidavit dated March 10, 2022 which pleadings form the basis of this claim.

7. The tribunal further ordered on July 28, 2022 that since the landlord had not complied, the tenant be at liberty to break in with the assistance of the OCS-Ntumu Police Station.

8. The tenant filed a further affidavit dated May 10, 2022.

The Landlord’s Claim 9. The landlord has filed a replying affidavit dated March 31, 2022 and annexed the lease agreement between the tenant and the landlord. The landlord also filed submissions dated September 7, 2022.

10. Parties have filed submissions and the matter was fixed for ruling on December 19, 2022.

Matters Not In Dispute. 11. It is not in dispute that there exists a tenancy agreement that was reduced into writing between the landlord and the tenant.

List Of Issues For Determination 12. It is the contention of this tribunal that the issues raised for determination are as follows;a.Whether the tenant moved out or was locked out of the premises?b.Whether the landlord was entitled to lock the premises?

Analysis And Findingsa.Whether the tenant moved out or was locked out of the premises?

13. The bone of contention in this suit has been when, if at all, the tenant moved out.

14. The tenant avers that she did not move out. Rather, she states that on February 4, 2022, the landlord locked the toilet and the next day, the landlord removed tap water and disconnected electricity. Subsequently, on March 4, 2022, the landlord locked the tenant out of the premises which had perishable goods.

15. On the other hand, the landlord claims that he discovered the premises were unoccupied on March 8, 2022 and upon investigations, realized that the tenant had moved out. He further avers that despite several calls being made to the tenant, the tenant did not pick up. On the allegation of locking the toilet and the premises, the landlord disputes this in full and disputes that they removed the tap water and disconnected electricity since this is a shared service with other tenants.

16. Having had a chance to peruse the documents in question, the tribunal finds that it cannot ascertain whether in fact the tenant’s goods are locked in the premises. There has been no other evidence tendered before this tribunal that shows the same.

17. Reliance is placed on Alice Wanjiru Ruhiu V Messiac Assembly of Yahweh [2021] eKLRwhere the court dismissed an appeal on the grounds that there was no evidence produced by adopting section 107 of the Evidence Act which provides that '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. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.'

18. From the foregoing, it is my considered observation after looking at the evidence before this court, I find that the tenant has the obligation to prove that they were kicked out of the premises. The tenant has shown evidence from the chief (Exhibit MWM-4) summoning the landlord where the tenant alleges that the landlord was instructed to reconnect electricity and water.

19. Afterwards, the tenant has also tabled evidence showing (Exhibit MWM-5) that shows that the same was reported to the assistant county commissioner who wrote to KPLC, Chuka seeking their arbitration of the issue of electricity since electricity was to be paid separate from rent. The tenant went further to table the receipt that shows she purchased the tap and that she even raised the same at Ntumu Police Station and even got an Occurrence Book Number 08/11/03/2022 at 10:30am. Lastly, the Assistant County Commissioner, on her behalf, referred the matter to the Rent Tribunal of the Eastern Region to determine the issue. This discharges the burden on the tenant.

20. In the same breath, I find that the landlord has to produce evidence to dispute the evidence shown by the tenant. Except for the lease, no other evidence has been rendered to show that there were rental arrears nor that the tenant moved out. However, on July 28, 2022, the tenant got orders to break in. On October 31, 2022, it was submitted that the premises were not in occupation from March 4, 2022 to August 24, 2022. As such, this tribunal directed the tenant to pay rent for Kshs 7,000 per month for September, October, November and December.

OrdersThe upshot is that tenant/applicant’s reference and notice of motion application dated March 10, 2022 is allowed in the following terms;a.The tenant to keep paying rent of Kshs 7,000 per month for September, October, November and December failure to which the landlord be at liberty to distress.b.The tenant to continue in occupation and pay rent every subsequent month as agreed

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A MUMA THIS 20TH DAY OF DECEMBER 2022 IN THE ABSENCE OF PARTIES.HON A MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL