[2021] KEBPRT 178 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 323 OF 2021 (NAIROBI)

PETER KILONZO.....................................................................TENANT/APPLICANT

VERSUS

PRESBYTERIAN CHURCH OF EAST AFRICA......LANDLORD/RESPONDENT

RULING

1. The Tenant’s application dated 21st July 2021 seeks the following orders;

a. Spent.

b. Spent

c. That the honourable Tribunal be pleased to order for payment of damages suffered amounting to Kshs 20,000/-.

d. That this honourable Tribunal be pleased to grant any other order it deems fit to grant.

e. That the OCS Kasarani Police Station to ensure compliance with these court orders.

f. Costs.

2. The grounds upon which the application is brought and the affidavit in support thereof may be summarized as follows;

a. That the Respondent has been harassing the Applicant without due cause.

b. That the Respondent has served the Tenant with an illegal notice to vacate.

c. That the Tenant has invested heavily in the shop/business, it is his only source of livelihood.

d. That when the Respondent locked the premises in March, the goods of the Tenant which are perishable were damaged.

e. That the Tenant has dutifully paid his rent save for the months of July and August and March and June 2021.

f. That the Tenant is willing to pay the arrears in monthly instalments of Kshs 5000/- in addition to the monthly rent.

g. That at the time the premises was locked, there was inside grocery stock amounting to Kshs 20,000/-.

h. That the Tenant has written to the Landlord requesting to pay the rent arrears in instalments.

i. That the Respondent has demanded rent arrears amounting to Kshs 71,000 by its notice dated 29th June 2021.

j. That the tenancy herein is a controlled tenancy which cannot be determined or altered without leave of the Tribunal and in accordance with the provisions of Cap 301 of the Laws of Kenya.

3. The application is opposed. The Landlord has filed an affidavit sworn by Ephantus Wanjohi Njoroge whose contents I summarize as follows;

a. That the Tenant’s application is misconceived and laden with material non disclosure of facts.

b.That the Tenant’s lease requires him to pay a monthly rent of Kshs 12,000/-.

c. That the Tenant has failed to pay rent when it became due.

d.That as at 5th August 2021, the Tenant is in rent arrears amounting to Kshs 79,000/-.

e. That the Tenant leased the premises while it had no electricity connected.

f. That the Landlord has never been approached by the Tenant to discuss settlement of the rent arrears. the Landlord is a stranger to the letters by the Tenant suggesting otherwise.

g. That the Tenant has refused to execute an agreement on the mode of payment of the rent arrears.

h. That the Respondent/Landlord has never locked up the premises neither has it in any manner interfered with the Tenant’s quiet possession of the demised premises.

i. That the sum of Kshs 20,000/- sought by the Tenant is unmerited.

j. That the Landlord/Respondent is not opposed to the Applicant being granted 90 days within which to clear the subject arrears.

k. That on the whole, the application dated 21st July 2021lacks merit and ought to be dismissed.

4. The application proceeded for hearing on 12th August 2021 when the parties tendered oral submissions. The Tenant relied on his affidavit in support of the application but added that in June 2021, the Respondent had promised to reduce his rent.

5. The Respondent through counsel orally submitted as follows;

a. That it placed reliance on the replying affidavit.

b. That the Tenant who has failed to pay rent cannot come to court for protection.

c. The Tenant has been invited to state how he intends to pay the as at now outstanding rent of Kshs 79,000/- but he has not made any attempts to pay the rent.

d. That the Respondent is amicable to the Tenant’s request to be allowed to liquidate the rent arrears within ninety days.

e. That there is no evidence that the Tenant has suffered losses amounting to Kshs 20,000/-.

6. The only issue that arises for consideration is whether the Tenant is entitled to the prayers he has sought in his application.

7. The Tenant by his letter of 5th July 2021admits owing the Respondent the sum of Kshs 71,000/- which he proposes to pay on a monthly basis of twelve months or less. The Tenant in his said letter stated that he has already paid Kshs 16,000 into the account of the Respondent.

8. I have not seen any evidence of this payment in the pleadings of the Tenant. The Tenant’s letter requests the Landlord to take account of the fact that during the month of July and August 2021, no business was carried out due to non availability of electricity. He also urges the Landlord to consider the damages occasioned while the premises was closed.

9. The Applicant has requested that he be granted (90) ninety days to clear the rent arrears. The Landlord/Respondent is not opposed to that prayer. I do note that the request was made on 21st July 2021 when the application was filed. The period of ninety days from that date would have lapsed at or towards the end of October.

10. As at 12th August 2021 when the application was urged the Tenant was in arrears of Kshs 79,000/- meaning that the rent has continued to accrue.

11. I will in the circumstances allow the Tenant thirty days from today to clear the outstanding rent failing which the Landlord/Respondent will be at liberty to levy distress for the said rent arrears.

12. As to the Tenant’s claim of Kshs 20,000/- being the damages suffered by the Tenant due to closure of the business premises, I do find that the Tenant has not tendered any evidence in support thereof and the same is dismissed.

13. The Tenant’s reference filed and dated 21st July 2021 is a complaint against the Landlord/Respondent for issuing the Tenant with an insufficient and illegal notice to vacate the premises on or before 29th July 2021. The Tenant in that complaint prayed for this Tribunal’s intervention.

14. The notice to vacate is the one dated 29th June 2021 from the Respondent and signed by one Elder Hellen Waweru. The said letter served notice upon the Tenant to vacate the premises within thirty days from the date of the letter unless the rent arrears are paid in full.

15. I am in agreement with the Tenant/Applicant that the notice aforesaid is an illegal one. It does not conform to the provisions of section 4 of Cap 301 as it is not in the prescribed form, is for a period of less than two months and does not require the receiving party to notify the requesting party whether or not he agrees to comply with the notice.

16. Consequently, I hold in terms of section 9(b) of Cap 301 that the purported tenancy notice shall be of no effect.

17. I in the circumstances make the following orders;

a. That the Tenant/Applicant is granted thirty (30) days from the date hereof to clear all the outstanding rent arrears failing which the Landlord will be at liberty to levy distress for the rent arrears.

b. The Tenant’s claim for damages in the sum of Kshs 20,000/- is dismissed.

c. The Landlord’s notice to vacate addressed to the Tenant and dated 29th June 2021 shall be of no effect.

d. The reference dated 21st July 2021 succeeds to the extent of the prayers granted above.

e. The Landlord shall bear the costs of the reference and the application.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this 15thday ofOctober 2021 in the presence of Mr Kilonzo (Tenant)and in the absence of the Respondent.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL