[2022] KEBPRT 796 (KLR)

Realmast Limited v Mwangi (Tribunal Case E174 of 2022) [2022] KEBPRT 796 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEBPRT 796 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E174 of 2022

Gakuhi Chege, Vice Chair

October 7, 2022

Between

Realmast Limited

Applicant

and

Fredrick Mwangi

Respondent

Ruling

1. The tenant moved this tribunal by an application dated February 22, 2022 seeking for an order directing the landlord to reopen its office on LRNo 209/76/9 and LRNo 209/76/10, Bekim House. The tenant also seeks for a temporary injunction against the landlord from interfering with the suit premises pending hearing and determination of the suit.

2. The gist of the tenant’s case is that on February 9, 2022, the landlord locked its office no 2B and store on ground floor of the suit premises and sealed it off denying the tenant access completely as evidenced by annexure ‘BG-2’. This denied the tenant’s access to sensitive private and confidential documents belonging to its clients.

3. It is the tenant’s case that it had no rent arrears and had even paid rent for the month of February 2022 in terms of annexure ‘BG-3’ and all other rent payment records had been locked inside the office. No notice had been served upon the tenant and it stood to lose a source of livelihood by reason of the landlord’s action.

4. Besides, the tenant deposes that it operates a valuer’s office and stood to lose client’s documents including titles if the intended eviction was allowed.

5. Interim orders were issued on February 28, 2022 directing reopening of the office and hearing inter-partes on March 14, 2022. By March 14, 2022, the orders had not been complied with and the OCS, Parklands Police Station was to ensure compliance with the orders. Parties were also directed to file separate statements of rent account within 14 days.

6. On March 16, 2022, the landlord moved this tribunal seeking for stay and review of the orders given on February 24, 2022 on the grounds that the same were issued without full disclosure by the tenant that it had 7 months rent arrears in the sum of Kshs 427,000/-. The landlord therefore contends that it is in the interest of justice that there be a review of the orders of the tribunal.

7. According to the respondent, the payment made by the tenant in February 2022 was part of accrued rent arrears and that if the premises were reopened, the tenant would take away all movable property failing to pay outstanding orders.

8. It is the respondent’s case that the tenant had not demonstrated how it would clear the rent arrears nor given security thereof.

9. On March 14, 2022, the tribunal directed parties to file submissions on both applications. Both parties complied.

10. I am required to determine the following issues:-a.Whether the tenant is entitled to the reliefs sought in the application dated February 22, 2022. b.Whether the landlord is entitled to the reliefs sought in the application dated March 16, 2022. c.Who is liable to pay costs?

11. It is not in dispute that the landlord closed the tenant’s premises on February 9, 2022 without obtaining any order from this tribunal nor serving any notice of termination of tenancy.

12. Section 4(1) of cap 301, Laws of Kenya provides as follows:-“Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall terminate or be terminated and no term or condition in or right or service enjoyed by the tenant of any such tenancy shall be altered. Otherwise than in accordance with the……provisions of this Act”.

13. The landlord in locking the tenant’s premises for purposes of enforcing rent payment acted in contravention of the said Act. Despite being served with the tribunal’s order to reopen the suit premises, the landlord took his sweet time to comply and even brought an application to stay the orders. He only complied on May 20, 2022 with the order of February 24, 2022.

14. In my considered view, the landlord acted unlawfully in closing the suit premises and failing to comply with this tribunal’s orders which amounts to contempt of court. He cannot therefore be entitled to the orders sought in his application dated March 16, 2022. No rent is payable for the closure period.

15. Despite both parties having been directed to file their respective statements of rent account, they did not comply. Under section 107(1) of the Evidence Act cap 80 Laws of Kenya, “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.

16. The landlord did not specify the period to which the claimed rent of Kshs 427,000/- related. As such there being no evidence that the tenant owes the said amount, I shall grant the injunction order sought against the landlord pending determination of the reference.

17. Costs of any suit or application are in this tribunal’s discretion and as such, I shall direct that costs of the two applications be awarded to the tenant.

18. In conclusion, I make the following orders:-i.Application dated February 22, 2022 is hereby allowed in terms of prayer 2 thereof.ii.Application dated March 16, 2022 is hereby dismissed.iii.The landlord is disentitled to any rent payment for the period between February 9, 2022 and May 20, 2022 on account of illegal closure of the suit premises.iv.Costs of both applications are awarded to the tenant.v.The parties shall comply with order 11 of the Civil Procedure Rules, 2010 by filing witnesses statements and any documents in support of their respective cases with thirty days (30) days hereof.It is so ordered.

RULING DATED, SIGNED AND VIRTUALLY DELIVERED THIS 7TH DAY OF OCTOBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL