[2022] KEBPRT 50 (KLR)
The Tribunal found that the issue of water connection had been resolved by the order of 5th January 2022, and the applicants had not provided evidence or pleadings to support their claim for compensation for loss of business. As such, no further orders could be issued on the water connection issue, and the...
Source-derived case information.
- Citation
- [2022] KEBPRT 50 (KLR)
- Parties
- Applicant: Peninah Musyoka; Applicant: Elias Ojuok; Respondent: Christopher Kyalo; Respondent: Benjamin Kioko
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E563 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- Application dismissed in part; no further orders granted on water connection or compensation for loss.
- Legal Topics
- Landlord Tenant Disputes, Interim Injunctions, Utility Disconnection, Compensation for Loss
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peninah Musyoka
Applicant
Elias Ojuok
Applicant
Christopher Kyalo
Respondent
Benjamin Kioko
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the respondents should be compelled to compensate the tenants for loss and damages during closure of the premises.
- 2 Whether the respondents should be restrained from evicting, locking out, harassing, or disconnecting utilities to the tenants pending hearing.
- 3 Whether the issue of water connection has been resolved by previous orders.
Ratio Decidendi
The Tribunal found that the issue of water connection had been resolved by the order of 5th January 2022, and the applicants had not provided evidence or pleadings to support their claim for compensation for loss of business. As such, no further orders could be issued on the water connection issue, and the applicants were directed to pursue implementation of the existing order with Nairobi Water and Sewerage Co. Ltd. The Tribunal held that any claim for loss of business must be properly pleaded and proved through evidence at a full hearing, which had not been done. The parties were granted liberty to move the Tribunal on the issue of loss of business upon compliance with Order 11 of the...
Court Disposition
Application dismissed in part; no further orders granted on water connection or compensation for loss.
Orders
- Applicants to pursue implementation of the water connection order with Nairobi Water and Sewerage Co. Ltd and report back to the Tribunal.
- No further orders on compensation for loss of business; parties at liberty to move the Tribunal upon compliance with Order 11 of the Civil Procedure Rules, 2010.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. E563 OF 2021 (NAIROBI)
PENINAH MUSYOKA..............................................................1ST APPLICANT/TENANT
ELIAS OJUOK..........................................................................2ND APPLICANT/TENANT
VERSUS
CHRISTOPHER KYALO...............................................1ST RESPONDENT/LANDLORD
BENJAMIN KIOKO.............................................................................. 2ND RESPONDENT
RULING
1. This ruling arises from the motion dated 6th October 2021 in which the tenants are seeking in material part for an order compelling the Respondents to compensate for loss and damages accrued during the period which the suit premises was closed pending hearing and determination of the suit.
2. The tenants also sought for an order restraining the Respondents from evicting, locking out, harassing them or disconnecting power and water supply pending hearing of the application inter-partes.
3. The application is supported by the affidavit of Peninah Musyoka sworn on 6th October 2021 where she states that the suit premises is located at Umoja plot no. 190 owned by the 1st Respondent/Landlord where they pay Kshs.14,000/- per month.
4. The tenants had no rent arrears but the landlord was locking them out of the business premises with a case in point being on5th October 2021 when he locked the premises. interim orders were given on 8th October 2021 by this Tribunal in favour of the tenant.
5. When the matter came up for inter-partes hearing on 19th October 2021, the application was allowed in absence of the Respondents after this Tribunal was satisfied with the issue of service. A date for compliance with the orders was set on 16th November 2021.
6. On 1st November 2021, this Tribunal ordered that water to the suit premises be restored by Nairobi Water and Sewerage Co. Ltd with immediate effect.
7. On 2nd December 2021, the Tribunal upon presentations made by the tenant directed and ordered as follows:-
“1. Further hearing on 5th January 2022.
2. Tenant to file application on the reliefs sought in regard to water and electricity disconnections
3. Application to be served upon the Respondents.
4. In the meantime, payment of rent to the landlord is suspended until the Respondents comply with the orders of 16th November 2021 and reconnect water and electricity supply to the tenant.
The OCS, Buruburu Police Station to assist the tenant in compliance with the orders”..
8. On 5th January 2022, the Tribunal made the following orders in the presence of both the 1st tenant and 1st Respondent/Landlord:-
“(1) The orders of 2nd December 2021 are hereby vacated for reasons given by the 1st Respondent.
(2) Nairobi Water and Sewerage Company Limited shall connect water to the tenant using a sub-meter from the existing water meter in the name of Philip Nyamai.
(3) Mention on 2nd February 2022 to confirm compliance”.
9. Going by all the orders given in this matter, it would appear that the dispute relating to water connection was resolved through the order of 5th January 2022 and the tenants have not explained what became of implementation thereof by the Nairobi Water & Sewerage Company Limited.
10. The further affidavit by the 1st tenant sworn on 1st April 2021 is of no assistance as it does not address the foregoing issue.
11. In the premises, no other order can be issued in favour of the tenants on the water connection issue which has already been addressed by the orders of 5th January 2021.
12. In the premises, the applicants will pursue implementation of the said order with Nairobi Water and Sewerage Co. Ltd and report back to this Tribunal.
13. in view of the foregoing, I shall make no other orders in regard to the matter before me since the question of loss of business allegedly suffered by the tenants can only be proved through pleadings and evidence in a full hearing. No pleadings on the specific sum claimed nor proof thereof has been tendered to assist the Tribunal determine the said issue.
14. Parties shall be at liberty to move the Tribunal on the said issue upon compliance with order 11 of the Civil Procedure Rules, 2010.
It is so ordered.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10TH DAY OF FEBRUARY 2022.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
Ruling delivered in absence of both parties.