[2022] KEBPRT 800 (KLR)
The Tribunal found that the landlord had properly served the tenant with a notice to terminate the tenancy due to rent default and unauthorized subletting. The tenant failed to file any reference or opposition to the notice or the application, despite being served and represented by counsel. Under section 10 of Cap....
Source-derived case information.
- Citation
- [2022] KEBPRT 800 (KLR)
- Parties
- Applicant: John Wanyange Mwangi; Respondent: James Wangai
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E043 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Landlord's Motion for Vacant Possession and Eviction
- Outcome
- Application allowed; vacant possession and eviction granted; costs awarded to landlord.
- Judges
- Gakuhi Chege
- Legal Topics
- Business Premises Tenancy, Termination of Tenancy, Eviction Procedure, Rent Arrears
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Wanyange Mwangi
Applicant
James Wangai
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Landlord's Motion for Vacant Possession and Eviction
Legal Issues
- 1 Whether the landlord is entitled to immediate vacant possession of the business premises due to the tenant's default in rent payment and unauthorized subletting.
- 2 Whether the tenant was properly served with a notice to terminate tenancy under Cap. 301 and failed to respond or refer the matter to the Tribunal.
- 3 Whether the landlord is entitled to costs of the application.
Ratio Decidendi
The Tribunal found that the landlord had properly served the tenant with a notice to terminate the tenancy due to rent default and unauthorized subletting. The tenant failed to file any reference or opposition to the notice or the application, despite being served and represented by counsel. Under section 10 of Cap. 301, in the absence of a reference or opposition, the notice to terminate tenancy takes effect as specified. The landlord's case was uncontroverted and proved on a balance of probabilities. The Tribunal exercised its discretion to award costs to the landlord, as the matter was undefended.
Court Disposition
Application allowed; vacant possession and eviction granted; costs awarded to landlord.
Orders
- The application dated 4th April 2022 is allowed in terms of prayers 3, 4 and 5 thereof.
- Costs of the application assessed at Kshs.15,000/- against the tenant.
Full Case Text
Judgment text and source record
25 paragraphs
Mwangi v Wangai (Tribunal Case E043 of 2022) [2022] KEBPRT 800 (KLR) (21 September 2022) (Ruling)
Neutral citation: [2022] KEBPRT 800 (KLR)
Republic of Kenya
In the Business Premises Rent Tribunal
Tribunal Case E043 of 2022
Gakuhi Chege, Vice Chair
September 21, 2022
Between
John Wanyange Mwangi
Applicant
and
James Wangai
Respondent
Ruling
1. Through a motion dated 4th April 2022, the landlord moved this Tribunal under section 10 & 12(1) (c ) & (4) of Cap. 301, Laws of Kenya seeking in pertinent part an order for immediate delivery of vacant possession against the tenant in respect of a business premises situate on L.R NO. Nakuru Municipality Plot No. 10/33 and in default, the Landlord be at liberty to evict him through a licensed Auctioneer. He further seeks that the OCS Central Police Station Nakuru do provide security and ensure compliance.
2. The application is supported by the affidavit of the landlord of even date wherein it is deponed that the tenant was served with a notice to terminate tenancy on 27th January 2022 on account of default in payment of rent and/or late payment of rent and subletting the premises without consent and approval of the landlord. The notice is annexure ‘JWM1’ which was expressed to take effect on 1st April 2022.
3. Although the applicant deposes that the Respondent filed a reference dated 24th February 2022 informing him that he will not be complying with the said notice, no such reference has been exhibited in this matter.
4. The Respondent is accused of subletting the suit premises to Ringtel Ltd without the landlord’s consent and/or approval as evidenced by annexure marked ‘JWM2’. He had not also paid rent for the months of February, March and April 2022. He is also accused of being a habitual rent defaulter whenever rent becomes due and payable. This is evidenced by annexures ‘JWM 3(a)-(d)’.
5. Despite being served with the application and appearing through Murunga advocate on 23rd May 2022 and 2nd August 2022, no replying affidavit or other response has been filed in this matter to controvert the landlord’s case.
6. In the premises, the application is unopposed and therefore for allowing.
7. Under section 10 of Cap. 301, where a landlord has served a notice in accordance with section 4 of the Act on a tenant and the tenant fails within the appropriate time to notify the landlord of his unwillingness to comply with such notice or to refer the matter to a Tribunal, then subject to section 6 of this Act, such notice shall have effect from the date therein specified to terminate the tenancy or terminate or alter the terms and conditions thereof or the rights or services enjoyed thereunder.
8. In absence of any evidence of a reference or opposition to the landlord’s application, I am satisfied that the landlord has proved his case on a balance of probabilities.
9. As regards costs, the same are in the Tribunal’s discretion under section 12 (1) (k) of Cap. 301, Laws of Kenya but always follow the event unless for good reasons otherwise ordered. I shall award costs to the landlord on the lower scale since the matter is undefended.
10. In conclusion therefore, the following final orders commend to me:-i.The application dated 4th April 2022 is allowed in terms of prayers 3, 4 and 5 thereof.ii.Costs of the application assessed at Kshs.15,000/- against the tenant.It is so ordered.
RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 21ST DAY OF SEPTEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:-Mr. Njoroge for the Landlord/ApplicantNo appearance for the Tenant/Respondent