[2022] KEBPRT 189 (KLR)

Mulwa v Kiriko (Tribunal Case E651 of 2021) [2022] KEBPRT 189 (KLR) (Civ) (4 May 2022) (Ruling)

Neutral citation: [2022] KEBPRT 189 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E651 of 2021

Gakuhi Chege, Vice Chair

May 4, 2022

Between

Elizabeth Nzisa Mulwa

Tenant

and

George Kiriko

Landlord

Ruling

1. Through a motion dated 2nd November 2021, the tenant moved this Tribunal seeking for injunction orders against the landlord from interfering with her quiet possession of the suit premises. She further seeks that the notice to terminate tenancy issued by the landlord be declared illegal for contravening section 4(2) and 7 of Cap. 301, Laws of Kenya.

2. The application is supported by the tenant’s affidavit of even date and the grounds on the face thereof. It is deposed that the parties entered into a tenancy agreement in the year 2020 for purposes of operating a wines and spirits liquor store. The current rent for the premises is Kshs.15,000/-.

3. On 27th October 2021, the landlord verbally informed the tenant that he had procured another tenant who was willing to pay Kshs.22,000/- from whom he taken deposit and rent. The tenant protested this turn of events as she had nowhere to relocate her business to. She even offered to increase rent to Kshs.17,000/-.

4. The landlord could hear none of the tenant’s pleas and went ahead to disconnect electricity to the premises making it impossible to operate the business between 1700 hours and 2300 hours as per the operating licence.

5. It is the tenant’s case that the verbal notice offends sections 4 and 7 of Cap. 301, Laws of Kenya. The tenant could not get assistance from the area chief as the landlord heads the ‘Nyumba Kumi’ initiative as a result of which he decided to file this suit.

6. It is further deposed that the tenant stood to suffer great prejudice if she was illegally evicted or her tools illegally appropriated or destroyed by the landlord.

7. The application is opposed through the replying affidavit of the landlord sworn on 24th November 2021 wherein it is deposed that he entered into a tenancy agreement with one Wainaina Patrick Wainana dated 28th September 2019 marked “GK-1”.

8. The landlord deposes that he has never entered into any agreement with the current tenant which explains why no written agreement has been attached by the applicant. The agreement entered into with the applicant relates to house no. A8 and not A.4. The tenant is said to have moved into house no. A4 without the landlord’s knowledge and had refused to pay electricity bills, water and garbage collection bills.

9. As a result, the tenant is accused of dumping his garbage on 1st Floor of the building which is under construction as per annexure ‘CK-3’. The landlord prays that the tenant be ordered to go back to house no. A8 and continue paying rent of Kshs.10,000/- after vacating House no. A4.

10. It is the landlord’s case that if the tenant wishes to continue operating from shop no. A4, she should be compelled to pay Kshs.25,000/- per month exclusive of service charges.

11. The landlord also moved this Tribunal vide a motion dated 20th December 2021 seeking that the ex-parte orders issued on 5th November 2021 be vacated and that a mandatory order be issued against the tenant to pay outstanding rent arrears to Kshs.80,000/-.

12. He also seeks for an order of distress for rent and eviction of the tenant in the event of failure to settle the arrears.

13. The application is supported by affidavit of the landlord sworn on even date and the grounds on the face thereof. It is deposed that the tenant failed to pay rent despite orders of the court and had vowed not do so as long as the interim orders issued on 5th November 2021 subsist.

14. According to the landlord, the orders of 5th November 2021 did not shield the tenant from paying rent. As at 20th December 2021, the amount in arrears was Kshs.80,000/-.

15. The application is opposed through the tenant’s affidavit sworn on 21st February 2022 wherein it is deposed that the landlord failed to comply with the court order of 5th November 2021 despite being served.

16. The landlord only complied in December, 2021 as a result of which the tenant claims to have paid rent. She contends that she moved into the premises subject matter hereof in August 2021 and paid monthly rent of Kshs.15000/- until October 2021 as tabulated in paragraph 7 of her replying affidavit and Mpesa account statement marked ‘EMN-1’.

17. The tenant contends that the landlord has not received rent during the period of disconnection of electricity as per the court order of 30th November 2021 and only reconnected the same in December 2021.

18. The tenant deposes that he paid rent upto February 2022 as per annexure “EMN2” and as such does not owe the landlord any arrears and the latter’s application should be dismissed with costs.

19. Parties were directed to file written submissions in respect of the applications and both complied. I shall consider the submissions together with the issues for determination.

20. Going by the pleadings, the following issues arise for determination:-a.Whether the tenant is entitled to the orders sought in the application dated 2/11/2021. b.Whether the landlord is entitled to the orders sought in the application dated 20/12/2021. c.Who is liable to pay costs?

21. Counsel for the tenant submits that the tenancy relationship between the parties herein is controlled within the meaning of section 2(1) of Cap. 301. The landlord disconnected electricity in respect of the demised premises as a result of which the tenant moved to this Tribunal. Upon the landlord being served with the court order to reconnect electricity, he failed to do so and the Tribunal had to suspend rent payment to enforce the order.

22. Thereafter, the tenant paid rent and by the time the landlord filed his application dated 20/12/2021, no arrears of rent were owing.

23. The landlord was accused of harbouring a scheme to increase rent to Kshs.25,000/- which the tenant protested as it was being done without adhering to the provisions of Cap. 301, Laws of Kenya.

24. On the other hand, the landlord’s counsel submits that the tenant has outstanding rent arrears for the months of November and December 2021 and previous unspecified rent arrears in the sum of Kshs.80,000/- all inclusive.

25. It is therefore the landlord’s submission that he is entitled to levy distress under section 3(1) of the Distress for Rent Act, Cap. 293, Laws of Kenya.

26. I have considered the evidence presented before the Tribunal and note that there is no dispute that the landlord disconnected electricity to the premises occupied by the tenant without any authority from the Tribunal or a court of law. This was an obvious interference with the quiet possession and use of the premises.

27. Secondly, the tenant has demonstrated how he has been paying rent to the landlord. Although the landlord claims that the tenant was in arrears of rent for the month of November and December 2021 besides previous arrears, the tenant displaced the allegation by exhibiting Mpesa statements in respect of the two months.

28. Although the landlord alludes to previous rent arrears, there is no tabulation presented before me to prove the same.

29. Section 107(1) of the Evidence Act, Cap. 80, provides as follows:-.“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”.

30. In absence of proof how the amount claimed by the landlord is made up, I am not convinced that the tenant owes the arrears sought to be recovered by way of distress.

31. As regards whether the tenant has demonstrated that he is entitled to the reliefs sought, I am convinced that she has proved interference by the landlord with her tenancy through disconnection of electricity. Even after this Tribunal ordered the landlord to reconnect the same, he failed to do so until an order suspending payment of rent was made.

32. It is therefore clear that the landlord unless restrained by way of injunction is prone to take the law into his hands and may even proceed to evict the tenant without following the provisions of Cap. 301, Laws of Kenya. No court of equity can countenance the law of the jungle to apply in this time and age. As such, I am convinced that the tenant has established a case for injunction.

33. The landlord claims that the tenant moved into a different premises leased to another tenant. However, the displaced tenant has not filed any affidavit neither has the landlord presented any material on what action he took to ameliorate the situation. I did not believe him.

34. I have looked at the reference filed by the tenant and note that it raises the same complaint as the application dated 2/11/2021. As such, this ruling shall apply to it in line with the provisions of section 12 (4) of the Landlord and Tenant (shops, Hotels and Catering Establishments) Act, Cap. 301 Laws of Kenya.

35. As regards costs, they are in the discretion of the trial court but always follow the event unless for good reasons otherwise ordered. I have no good reasons to deny the tenant costs.

36. Before making the final orders, it is noted that the landlord failed to comply with the order of 5th November 2021 and the Tribunal had to suspend payment of rent on 30th November 2021. He only reconnected electricity in December 2021 after the said suspension and was therefore not entitled to rent for that month. I shall therefore order a refund of the said rent in the sum of Kshs.18,000/- in line with the provisions of section 12 (4) of Cap. 301 Laws of Kenya.

37. In conclusion therefore, the following orders commend to me in this matter:-.a.The tenant’s application dated 2nd November 2021 is allowed in terms of prayers 2 and 5 thereof.b.The landlord’s application dated 20th December 2021 is dismissed with costs.c.The tenant shall be refunded a sum of Kshs.18000/- in respect of rent for November 2021 when her premises had been cut off from power supply by the landlord within 30 days hereof.d.In the event of failure to pay the said amount, the tenant shall be at liberty to offset it against future monthly rent payable to the landlord.e.The tenant’s reference dated 4th November 2021 is allowed.f.The tenant is awarded costs of Kshs.20,000/- against the landlord which shall be paid within Thirty (30) days or offset against future monthly rent payable.It is so ordered.

RULING DATED, SIGNED AND VIRTUALLY DELIVERED THIS 4TH DAY OF MAY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling read in the absence of the parties.