[2024] KEBPRT 207 (KLR)

Raggot v Murigi & another (Tribunal Case E870 of 2023) [2024] KEBPRT 207 (KLR) (29 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 207 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E870 of 2023

N Wahome, Member

January 29, 2024

Between

Rocas Ochieng Raggot

Tenant

and

George Ndirangu Murigi

Landlord

and

Sadique Enterprises Auctioneers

Auctioneer

Ruling

1. The Tenant/Applicant commenced these proceedings by way of a reference dated 7. 09. 2023. the same was said to be founded on Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 (hereinafter called “the Act”). The Applicants complaint was that;-“The Landlord has proclaimed my goods on disputed rent arrears with sole intention to evict me contrary to provisions of Cap 301 Laws of Kenya. I pray the court to intervene and I be given the necessary orders plus costs of this case.”

2. The Reference was accompanied by a notice of motion of even date which primarily sought that the landlord be restrained from carting away the Tenant’s already proclaimed goods; from interfering with his tenancy and/or evicting him; that the landlord be ordered to produce statements and records of payment of rent. The Tenant also sought that the orders issued be enforced by the OCS Athi River police station and also costs of the suit.

3. The Tenant thereafter filed an amended notice of motion dated 06. 10. 2023 and a supporting affidavit sworn on the same date. This Amended motion added a record prayers 7 to 16. In the added prayers, the Tenant sought for declarations that he had expended money to upgrade and/or improve the demised premises.

4. Among the developments were;-a.Ground levelling Kshs. 24,000/=b.Construction Kshs. 93,000/=c.Maintenancy costs Kshs. 24,000/=d.Goods supplied to the landlord Kshs. 120,000/=e.Repair costs for the beams supporting the gate Kshs. 50,000/=

5. The Tenant in the Amended motion, also sought for payment of Kshs. 240,000/= being six (6) months’ rent in lieu of notice and further, be reimbursed the rent deposit paid to the landlord though the amount of the deposit was not disclosed.

6. In all, the Tenant claimed that his claims as against the landlord far outweighed the landlord’s claim against him for rent arrears.

7. On his part, the landlord in response to the Tenant’s suit, he filed the Reference dated 29. 09. 2023. the same was said to be founded under Section 12(4) of the Act. The grievances in the suit were that:-“The non-payment of rent by the Tenant (sic) arrears that have amounted to Kshs. 146,000/=.”

8. The landlord further claimed that;-a.Lease has already expired,b.Has rent arrears of Kshs. 146,000/=; andc.The landlord intends to develop the premises.

9. The landlord’s reference was accompanied by a notice of motion dated 29. 09. 2023. Among the reliefs sought were that;-i.The orders of this court issued on the 11. 09. 2023 be set aside;ii.Warrants of arrest be issued against the Tenant;iii.The Tenant be ordered to deliver vacant possession of the demised premises.iv.The landlord be allowed to levy distress on the rent arrears of Kshs. 146,000/=.v.The orders issued be executed by the OCS Athi River police station.vi.Costs of the suit.

10. The landlord’s case was that;-a.His lease agreement with the Tenant and dated 1. 8.2021 was for three (3) years at a monthly rent of Kshs. 40,000/= and was to expire on the 1. 8.2023. b.By August, 2023, the Tenant was in rent arrears for five (5) months and fifteen (15) days totaling to Kshs. 220,000/=. He sold him a dining table at Kshs. 120,000/= and paid him Kshs. 46,000/= by Mpesa leaving a balance of Kshs. 74,000/=.c.He instructed the 2nd Respondent to levy distress on the arrears and gave the tenant notice to vacate the demised premises within fourteen (14) days as the tenancy agreement had lapsed effective the 01. 08. 2023.

11. In analyzing the evidence on record, I have also perused the landlord’s submissions dated 30. 11. 2023 and those of the Tenant dated 17. 11. 2023. In my considered opinion, the issues for determination herein are the following;-A:Whether there exists a landlord/Tenant relationship between the partiesB:Whether the Tenant has proved his case on a balance of probabilities.C:Whether the Landlord should be granted leave to levy distress and for how much?D:Who should bear the costs of this suit

Issue No. A: Whether there exists a landlord/Tenant relationship between the parties 12. On the first issue of whether there exists a landlord and Tenant relationship between the parties, I would wish to refer to the lease agreement dated 01. 08. 2021. under Clause 2(11) thereof, the same provides that;-“The lease agreement is to run for a term of two years commencing on the 01. 08. 2021. ”

13. Simple arithmetic would show that the said lease lapsed or expired on the 01. 08. 2023. I have looked at the landlord’s averments under oath which insinuate that the lease was for three (3) years but I believe that the same was an error in view of the reality as demonstrated by the lease agreement.

14. The Tenant has also not paid any rent to the landlord effective the 1st August, 2023 and what this court may order to protect the rights of the parties is as provided for under Section 12(1)(e) of the Act which provides that this tribunal has powers;-“to make orders, upon such terms and conditions it thinks fit, for the recovery of possession and for the payment of arrears of rent and mesne profits, which orders may be applicable to any person, whether or not he is a tenant, being at any material time in occupation of the premises comprised in a controlled tenancy.”

15. The duty of this court is to interpret voluntarily entered agreements between the parties and enforce the same. This court has no wherewithal to create a contract for the parties. In the case of; South Nyanza Sugar Co. Ltd v Leonard O. Arera [2020] eKLR, Justice A.C. Mrima held that;-“It is a long standing principle of law that parties to a contract are bound by the terms and conditions thereof and that it is not the business of the courts to rewrite such contracts.”

16. Further, in the case of; National Bank of Kenya Ltd v Pipe Plastic Samkolit (K) Ltd [2002] 2 EA 503, [2011] eKLR, the court of Appeal held that;-“A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.”

17. In the case of; Kimaiyo Pius Langat v Co-operative Bank of Kenya Ltd [2017] eKLR, the court of Appeal again spoke to the issue and held that;-“We are alive to the hallowed legal matim that it is not the business of the courts to rewrite contracts between parties, they are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved.”

18. In this case, the lease agreement has been produced by both parties. The same are plain and unequivocal. None of the parties has challenged the plain import of the same. I therefore determine that the lease between the parties was for two (2) years and that the same lapsed and terminated on the 01. 08. 2023.

Issue No. B: Whether the Tenant has proved his case on a balance of probabilities 19. I have listed all the claims by the Tenant totaling to approximately Kshs. 307,000/=. The landlord has emphatically denied that any such developments were carried out by the Tenant nor that his consent was sought.In his Reference dated 7. 8.2023, the Tenant only complained of being demanded unjustified arrears of rent and threats to evict him. All those other monetary claims came in the notice of motion amended on the 06. 10. 2023.

20. The Tenant did not in any way present any evidence of the purported expenditure at Kshs. 307,000/=. As earlier alluded to, the Tenant did not provide any iota of evidence that the landlord had consented to the purported development/improvements if at all any was carried out.Section 12(1)(l) provides that among the powers of the Tribunal are 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.”

21. Over and above that, the Tenant did not prove any expenditure in development or improvement of the demised premises. It is trite law that special damages must be pleaded and strictly proved. In this case, the same are not pleaded in the suit and there is no attempt to prove the same at all.

22. In the case of; Habn v Singh, Civil Appeal No. 42 of 1983 (1985) KLR716, the court of Appeal held that;-“Special damages must not only be specifically claimed (pleaded) but also strictly proved…” for they are not the direct natural or probable consequences of the act complained of and may not be informed from the Act.”

23. In Chalicha FCS Ltd v Odhiambo & 9 Others [1987] KLR 182, the court held that;-“Cases must be decided on the issues on the record. The court has no power to make an order, unless by consent, which is outside the pleadings. In this instance, the issues raised by the Judge and the order thereon, was a nullity.”

24. It therefore follows that the Applicant never pleaded his claim as would be expected in the suit which is the reference. The pleadings in both the original and amended motions were unsupported by any evidence, material or otherwise and was therefore not proved. I therefore make a finding that the Tenant failed to substantiate his claim.

Issue No. C: Whether the Landlord should be granted leave to levy distress and for how much? 25. Section 3(1) of the Rent for Distress Act Cap 293 provides that;-“Subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrears and due upon a grant, lease, demise or contract shall have the same remedy by distress for the recovery of that rent or rent service as given by the common law of England in a similar case.”

26. In the case of; Joseph Nthumbi Kamnishi v Asha Akumu Juma, the court determined that a landlord who was owed rent in arrears did not require the leave of court to execute distress for rent. The court held that;-“I find that the Appellant had no obligation to seek permission from the tribunal to levy distress. The fact that the tenancy is controlled does not mean that the landlord applies to the tribunal to levy distress. Distress is a right the landlord is entitled to for the recovery of rent.”

27. I therefore find that the landlord was entitled to levy distress and that he did not then and does not now need the leave of the court to execute those inherent rights to him.

28. According to clause 2(vi) of the lease agreement, the monthly rent was Kshs. 40,000/= which was to increase by 10% on expiry of one (1) year. Therefore, as admitted by the Tenant, the monthly rent effective the 1. 8.2022 was Kshs. 44,000/=. The rent in arrears for five (5) months and fifteen (15) days as at August, 2023 was Kshs. 244,000/=. When you less the Kshs. 120,000/- for the said dining table and Kshs. 46,000/= paid by mpesa, they total to Kshs. 166,000/=. The total in rent arrears up to August, 2023 was therefore Kshs. 76,000/=. The mesne profits between September, 2023 to January, 2024 for five (5) months is Kshs. 220,000/= when you add the rent arrears of Kshs. 76,000/=, the total is Kshs. 296,000/=.

29. I therefore find that, the landlord is entitled to rent in arrears and mesne profits at Kshs. 296,000. I also deem it fit to grant the Tenant thirty (30) days of the date of this Ruling which accrues a further Kshs. 44,000/= being the mesne profits for the month of February, 2024. The total that will be due to the landlord from the Tenant as he vacates the suit premises by the 29. 02. 2024 shall be Kshs. 340,000/=.

Issue No. D: Who should bear the costs of this suit 30. Costs follow the event. In this case, I do not find any reason nor justification to depart with the conventional wisdom of Section 27 of the Civil Procedure Act. I will therefore award costs to the landlord.

31. In the final analysis, I find that my determination on the Applications herein, have also fully compromised the respective References thereof. The determination on the Applications have simply left nothing for determination under the References.

32. The orders that therefore commend themselves to me are the following;-a.That the landlord/Tenant relationship between the Applicant and the 1st Respondent terminated effective the 1. 8.2023 pursuant to the lease agreement dated 1. 8.2021. b.That the Respondent is granted leave to levy distress against the properties of the Applicant lying at the demised premises in recovery of arrears in rent and mesne profits at Kshs. 340,000/= all inclusive.c.That the Applicant has thirty (30) days effective the date of this Ruling to evacuate from the demised premises and deliver vacant possession to the Respondent in default the landlord to enforce the same with assistance of the OCS Athi River police station.d.That the Applicant shall pay costs to the landlord assessed at Kshs. 20,000/=.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JANUARY, 2024. HON. NDEGWA WAHOME, MBSMEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Chege for the Tenant and in the absence of the landlord.Further orders;1. The parties to be supplied with certified copies of the Ruling on payment of the requisite fees.2. There shall be stay of execution for thirty (30) days.HON. NDEGWA WAHOME, MBSMEMBERBUSINESS PREMISES RENT TRIBUNAL