[2022] KEBPRT 846 (KLR)

Murimi v Mwangi & another (Tribunal Case 935 of 2021) [2022] KEBPRT 846 (KLR) (Civ) (18 November 2022) (Judgment)

Neutral citation: [2022] KEBPRT 846 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 935 of 2021

Andrew Muma, Vice Chair

November 18, 2022

Between

Jackson Murimi

Tenant

and

KM Mwangi

Landlord

and

Otalo Wawire

Agent

Judgment

A. Parties and Representatives 1. The applicant Jackson Murimi is the tenant and rented space on the suit property Shop No 3 on Skylark flats. (hereinafter known as the ‘tenant’)

2. The firm of Faith Akoth Oketch & Advocates represent the tenant/applicant in this matter.

3. The respondent Jackson Murimi is the tenant rented space on the suit property Shop No 3 on Skylark flats. (hereinafter known as the ‘tenant’)

4. The firm of ABK Advocates LLP represent the respondent/landlord in this matter.

B. The Dispute Background 5. The Landlord and the tenant entered into a tenancy agreement dated October 1, 2020in respect of the suit property.

6. The Landlord issued the tenant with a Notice to Terminate tenancy through issuing of letters October 24th 2020 and November 15th 2020. The tenant then filed a reference and Notice of Motion application and acquired injunctive orders against the landlord to which the landlord did not comply and the tenant filed another application dated October 12, 2021 and obtained further orders against the landlord.

7. The landlord has since filed the present application dated October 19, 2021under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act cap 301 seeking amongst other orders that the Tribunal set aside the orders issued against them on the grounds that there was material non-disclosure of facts by the tenant as to the existence of a landlord-tenant relationship.

8. The Tenant was thereafter evicted through a court order dated February 24, 2022 in Suit No E680 of 2021. The tenant is now seeking damages for the untimely termination of the tenancy.

9. The Jurisdiction of this Tribunal is in dispute.

10. The Tenant filed a reference and notice of motion application dated December 2, 2020which pleadings form the basis of this claim.

11. The Landlord has filed a replying affidavit dated February 21, 2022.

12. The tenant was thereafter evicted through a court order dated 2February 4, 2022.

13. Parties have since been asked to file submissions for damages and the matter was fixed for ruling on November 17, 2022

C. List of Issues for Determination 14. It is the contention of this tribunal that the issues raised for determination are as follows;a)Whether there exists a landlord tenant relationship that entitled the Tenant to damages?

D. Analysis and FindingsWhether there exists a landlord-tenant relationship between the parties warranting an award of damages? 15. Section 12 (1)(i) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act chapter 301 Laws of Kenya provides that;“To award compensation for any loss incurred by a tenant on termination of a controlled tenancy in respect of goodwill, and improvements carried out by the tenant with the landlord’s consent”

16. The above provision allows the Business Premises and Rent Tribunal to in addition to the powers conferred upon it by the Act to award compensation to any tenant who incurs loss as a result of termination of their tenancy.

17. In the present case, the Tenant has averred that they entered into a tenancy agreement with the Landlord and upon expiry of the same the Landlord locked them from the premises. They thereafter filed a reference and application seeking orders to access the premises. Before they could access the premises the Court in a parallel Suit No. E680 of 2021 issued orders evicting the Tenant.

18. The tenant therefore seeks compensation for the termination of the Tenancy. The Tribunal in determining the quantum of damages that the Tenant is entitled to will evaluate whether the tenant was evicted lawfully as per the provisions of cap 301.

19. The Landlord has averred in their replying affidavit that upon the expiry of the lease they informed the tenant that they did not intend to renew the lease. This is evidenced by the fact that they did not proceed to receive any rent from the tenant after expiry of the lease. However sought and obtained reprieve from the tribunal to which the landlord in an attempt not to obey obtained orders in a parallel suit which the Tenant was not aware of and as a result the relationship was abruptly terminated leaving this cause in limbo.

20. The Tribunal in pursuit of justice observes that the tenant was not accorded sufficient time to exit the premises upon expiry of the Lease. The Landlord in their letters dated October 24, 2020and November 15, 2020accorded the tenant one month to vacate which I find was not sufficient.

21. From the above the tribunal finds that the Tenant is entitled to compensation for the termination of the tenancy.

22. On the damages listed the tenant has only proven set up costs refund being 189,480 and 236,420 in inventory breakages and relying on the annexed receipts the tribunal finds as follows;

E. Ordersa.The Landlord shall pay damages to the Tenant at the rate of Kshs 313,820 by December 31, 2022. b.Each party shall bear their own Costs.

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALJUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 18TH DAY OF NOVEMBER 2022In the presence of MS Oketch for the Tenant and N/A for Landlord.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL