[2021] KEBPRT 88 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 260 OF 2021 (NAIROBI)

PARTY OF DEMOCRATIC UNITY..................................................APPLICANT/TENANT

VERSUS

THE MANAGER OF

KENYA HOUSE COMPLEX.............................................1ST RESPONDENT/LANDLORD

RICHARD WANGONDU..................................................2ND RESPONDENT/LANDLORD

ICON AUCTIONEERS...............................................3RD RESPONDENT/AUCTIONEERS

RULING

1. Through a motion dated 23rd March 2021, the tenant is seeking for a temporary injunction to restrain the Respondents from evicting it, attaching its movable property and interfering with its peaceful and quiet occupation of the premises pending hearing and determination of this suit.

2. The applicant is also seeking to be declared a protected tenant in lieu of existence of a lease agreement between it and the 1st Respondent.

3. The application is supported by the affidavit of Isaiah Gichu Ndirangu sworn on 23rd March 2021 in his capacity as who is the Applicant’s Chairman and the grounds on the face of the application.

4. In the year 2017, the applicant took possession of office 5F within Kenya House Complex where it operates the political party office at monthly rent initially agreed at Kshs.50,000/-. The rent was later reduced to Kshs.40,000/-.

5. There is no written lease agreement between the applicant and 1st Respondent. The tenant deposes that owing to ongoing construction from 2018, there have been inconvenience caused by dust and noise.

6. The applicant as a result had to scale down its operations but continued to pay rent in terms of annextures “IGN4”.

7. In the year 2019, the 1st Respondent’s caretaker one Shadrack Mbithi Mwania is said to have suspended rent payment owing to construction of additional floors and pillars inside the applicant’s office for structural support and that rent was to thereafter be reduced to Kshs.30,000/-.

8. Through a letter dated 19th July 2019, the applicant acknowledges that the initial reserved rent was Kshs.50,000/- but complained that the same was above the market rent for similar premises.

9. It was therefore seeking that the rent having been harmonized at Kshs.40,000/- be reduced to Kshs.30,000/- due to passage of a construction pillar in the office which caused the materials used to partition the office was to be broken and taken away.

10. Having failed to receive a response, the applicant wrote a reminder to the 1st Respondent on 15th August 2019 stating that it had undertaken renovations on the damaged portions of the suit premises occasioned by erection of a pillar to support the construction.

The applicant concludes its letter as follows:-

“The party therefore assumes that in the absence of a written communication from yourselves, we will act on our previous letter hence this month we have submitted a cheque of Kshs.30,000/-“.

11. The tenant deposes that according to its research, it had discovered that it had been paying an exaggerated rent of Kshs.50,000/- per month as opposed to Kshs.40,000/- paid by other tenants occupying similar space on the same floor.

12. The applicant attaches an affidavit of one Shadrack Mbithi Mwania wherein he states that the damage caused by the pillars was to be billed “to the landlord to be deducted from rent which was reviewed by Mr. Wangondu to Kshs.30,000/- a month”.

13. On 28th November 2019, the 1st Respondent demanded rent arrears of Kshs.495,000/- through Fahari Valuers Limited. It responded by a letter dated 29th November 2020 claiming to have used Kshs.150,000/- in repairs and giving a breakdown of the payments made towards rent. It concludes by stating that it was not in any rent arrears.

14. On 4th December 2019, the applicant wrote a letter to the 1st Respondent stating that it had suffered due to cement dust coming from construction of additional floors. As a result, the applicant indicated that it would scale down operations and will only pay rent for the months when no construction would be going on.

15. On 11th March 2021, the tenant was served with a proclamation of distress for rent by Icon Auctioneers seeking to recover over Kshs. 1 million. The proclamation is annexed as “IGN 12”.

16. According to the applicant, the proclamation was issued in bad faith, out of malice and is grossly exaggerated as the 1st Respondent declined to meet it for purposes of reconciliation of accounts.

17. The applicant therefore prays for injunction to restrain recovery of the exaggerated amount by the Respondents and the fact that there were sensitive documents of party members which would be dangerous if accessed by unauthorized persons.

18. The application is opposed through a replying affidavit and further affidavit of Richard Wangondu Makanga sworn on 28th May 2021 and 1st July 2021 respectively.

19. He confirms that the tenant occupied office 5F on 1st floor paying an initial rent of Kshs.50,000/- by virtue of “an implied lease contract”. The said lease is said to be standard and applicable to all tenants.

20. The tenant declined to execute the ‘lease structure’ to enable preparation of the formal lease despite repeated requests.

21. In June 2019, the landlord deposes that it informed the tenants that construction works were to be undertaken in the building and the applicant would be affected or interrupted by the said construction works.

22. As compensation for the disturbances or interruptions caused by the ongoing intended construction, rent would be reduced by Kshs.10,000/- to leave the applicant’s rent at Kshs.40,000/- with effect from August 2019.

23. The tenant is said to be inconsistent in remitting the agreed rent as shown by annexture ‘RWM3’. As at 11th March 2021, the tenant was in arrears of Kshs.880,000/-.

24. The 1st Respondent in exercise of its right to levy distress under the Distress for Rent Act instructed M/S Icon Auctioneers to levy distress. A proclamation was issued on 11th March 2021 with goods valued at Kshs.23,000/- being found since the premises are furnished by the landlord.

25. The 1st Respondent contends that the applicant is seeking to evade their responsibility of paying rent and enjoying restraining orders issued on 24th March 2021.

26. Although the 1st Respondent contends that there is no reference on record, I have perused and found one dated 23rd March 2021.

27. In the further affidavit, the respondents contend that the suit premises is owned by Samji Kala Properties Limited in terms of annexture RWM5. However, there is no evidence of any dealings between the tenant and the said company in all the payment receipts exhibited herein. It cannot therefore be taken as the landlord.

28. The landlord denies that its caretaker had any authority to fix or negotiate rent for the suit premises. His services were terminated when he absconded from duty.

29. The landlord confirms that the initial agreed rent was reduced to Kshs.40,000/- on its own volition. According to the landlord, the tenant was in Kshs.400,000/- in rent arrears by the date of reduction. The said amount had not been settled by the time of swearing the further affidavit.

30. All receipts exhibited by the tenant for Kshs.30,000/- are indicative that it was “part rent”. Rent payable for different spaces was not uniform according to the landlord as it depended on the area occupied. The landlord had never consented to payment of Kshs.30,000/- as monthly rent.

31. The application was ordered to proceed by way of written submissions. I note that the reference raises the same complaint as the application and I shall therefore determine both together.

32. I am required to determine the following issues:-

(a) What is rent payable for the demised premises?

(b) Is the tenant entitled to the reliefs sought?

(c) Who is liable to pay costs?

33. I have examined the evidence tendered and find that the initial rent for the suit premises was Kshs.50,000/- which was subsequently reduced to Kshs.40,000/-. I have not seen any evidence for a further reduction of rent to Kshs.30,000/-.

34. The letters marked IGN 5 and 6 attached to the supporting affidavit do not amount to the notice envisaged under section 4(2) of Cap. 301 for purposes of alteration of the terms of tenancy. They are not in standard form and have no legal effect (see the case of Fredrick Mutua Mulinge t/a Kitui Uniform – vs- Kitui Teachers Housing Cooperative Society Limited (2017) eKLR in that regard).

35. The tenant has proceeded on the basis that the rent payable in respect of the suit premises is Kshs.30,000/- per month. The payments exhibited are for the said amount and as such the same constitute evidence of indebtedness to the landlord.

36. The landlord’s statement of account marked ‘KWM 3’ clearly shows that the tenant was in rent arrears of Kshs.850,000/- as at April 2021. This statement has not been controverted through affidavit evidence by the tenant.

37. It was therefore right for the landlord to levy distress against the tenant under section 3(1) of the Distress for Rent Act, Cap. 293, Laws of Kenya and did not require any permission from this Tribunal which is not mandatory (see the case of John Nthumbi Kamwithi – vs- Asha Akumu Juma (2018) eKLR.

38. Although the tenant claims to have effected repairs on the suit premises on account of damage occasioned by the landlord during construction of the building housing it, there is no evidence that the same was presented to the landlord for consideration. There is neither a claim for such compensation before this Tribunal for consideration.

39. In the premises, the applicant has failed to bring itself within the principles for granting an injunction espoused in the case of Giella – vs- cassman Brown & Co. LtdEA 358.

40. The prayer for declaration of the tenant as a protected tenant is moot in that there is no party who has contested its status as such moreso considering that there is no written lease of over 5 years.

41. In the premises, I proceed to make the following final orders:

(a) The rent payable for the suit premises is Kshs.40,000/- per month from August 2019.

(b) The application dated 23/3/2021 is dismissed with costs.

(c) The tenant shall pay outstanding rent in full within the next Thirty (30) days hereof failing which the interim orders given on 24/3/2021 shall stand vacated and discharged.

(d) The tenant’s reference is hereby dismissed.

(e) The costs of the application and the Reference assessed at Kshs.30,000/- is awarded to the landlord.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED THIS 14TH DAY OF DECEMBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling read in absence of both parties.