[2022] KEBPRT 1082 (KLR)

Rims Supplies Co. Ltd v Munene (Tribunal Case 78 of 2021) [2022] KEBPRT 1082 (KLR) (21 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 1082 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 78 of 2021

CN Mugambi, Chair

November 21, 2022

Between

Rims Supplies Co. Ltd

Tenant

and

Leah Wanjiru Munene

LandLady

Ruling

1. The Tenant’s application dated 5. 4.2022 seeks orders of injunction restraining the landlord from in any way interfering with the tenant’s peaceful occupation of the premises known as plot No. 6 Lakeview (Koinange) pending the hearing and determination of the reference. The Applicant has also sought an order that the Respondent be ordered to accept rent failing which the Applicant be allowed to deposit the same in the Tribunal. The tenant has also sought on order for the restoration of water supply to the suit premises and police assistance in the compliance of the orders sought by the tenant.

2. The application is supported by the affidavits of Jemimah Wairimu Waihenya and opposed by the replying affidavit of Leah Wanjiru Munene.

3. Both parties have also filed written submissions on their applications.

The Applicant’s depositions 4. The tenant has deponed that it has been a tenant of the Respondent since 2016 and has been regularly paying its rent on a quarterly basis.

5. The tenant depones that it received a letter from the Respondent dated 7. 7.2021 which letter indicated that the agency relationship between the Respondent and Maflora Agencies Limited had been terminated. The said agency was collecting rent on behalf of the Respondent.

6. That the Applicant through its advocates then forwarded a Banker’s cheque for Kshs. 240,000/= to cover the rents of August, September and October 2021 and which cheque was returned by the Advocates for the Respondent who stated that the Respondents did not recognize the Applicant as a tenant.

7. The Applicant deponses further that another cheque for the rent of the month of November 2021 to January 2023 was also sent to the Respondents but was returned.

8. That on 30. 3.2022, the Respondent sent Jogedah Auctioneering Services to distress for the rent she had already rejected in the sum of Kshs. 720,000/=.

9. The Applicant depones further that the Respondent has issued notices to it to vacate the premises. The notices are dated 30. 4.2021 and 24. 5.2021 and the tenant states that both notices are unlawful.

10. The tenant depones that the landlady’s refusal to accept rent is a scheme calculated to evict it and that further, the Respondent has disconnected water to the suit premises.

11. The Applicant blames the Respondent for refusing to accept rent and depones that it is ready to deposit it in the Tribunal.

12. The tenant depones in its further affidavit that the tenancy between the parties did not arise out of the lease agreement marked as LWM1 but rather, what exists is a controlled tenancy which is oral between the parties herein.

The Respondent’s depositions 13. The Respondent has deponed that when the Applicants tenancy expired on 14. 3.2021, she wrote to the tenant through her agent Maflora Agencies Limited informing the tenant of her lack of interest in renewing the lease.

14. The tenant wrote to the Respondent on 30. 4.2021 opposing the said notice.

15. The Respondent issued another notice dated 3. 5.2021 to the tenant after which the tenant’s directors became rude and aggressive towards the Respondent telling her to cut ties with the tenant.

16. The Respondent states that since July 2021, the tenant has been illegally occupying the Respondent’s plot No. 6 and trespassing upon the same. The tenant has variously confirmed that it is not a tenant to the Respondent.

17. The Respondent depones that the tenant is liable to pay her the sum of Kshs. 720,000/= being the rent arrears the tenant admits.

Analysis and determination 18. The issues that arise for determination in this application in my view are the following;-a.Whether there exists a controlled tenancy between the Applicant and the Respondent.b.Whether the Respondent was entitled to levy distress for rent arrears amounting to Kshs. 720,000/=.c.Whether the Tenant ought to be ordered to deposit rent in the Tribunal.d.Whether the Applicant is entitled to the orders sought in his application.e.What orders should be made in respect of the Tenant’s Reference dated 21. 6.2021.

On Issue A 19. Ms. Jemimah Wairimu Waihenya has deponed in her affidavit sworn on 5. 4.2022 that; she is a director of the Applicant and that the Applicant became a tenant of the Respondent on or about 14. 3.2016. The Respondent on her part has stated that the tenant herein became a tenant pursuant to a lease agreement dated 14. 3.2016. The Tenant has denied that the lease referred to gives rise to any tenancy between the parties herein as it was entered into by Ms. Jeremiah Waihenya in her personal capacity. The tenant’s position is therefore that there exists an oral tenancy agreement between the parties herein which creates a controlled tenancy.

20. I have read the Tenant’s lease agreement and indeed it is true that the same has been entered into between one Jeremiah W. Waichenya and Wanjis Commercial Agencies. The agreement indicates that it is for plot No. 6 Lakeview, the property of Catherine Watiri. It is clear therefore that both parties to this suit were not parties to that lease agreement.

21. I do note that the rent receipts annexed to the supporting affidavit of the Applicant have all been issued in the name of the Tenant/Applicant as are all the notices sent to the tenant by the Respondent herein. It is therefore credible and I do find that the lease annexed to the Respondent’s replying affidavit did not form the basis of the tenancy between the parties herein. There being no written lease agreement between the parties herein, I also do find on this issue that as per the definition of a controlled tenancy under Section 2 of Cap 301, the tenancy herein is a controlled tenancy and the tenant, a protected tenant.

On Issue B 22. The right of a landlord to distress for rent is provided for under the distress for rent Act Cap 293 where at Section 3 thereof, it is provided as follows;-“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 is given by the common law of England in a similar case.”

23. The question that arises here is whether the tenant was in rent arrears at the time the Respondent herein instructed auctioneers to levy distress for rent against the tenant. The tenant has stated that its Banker’s cheque No. 535437 for the sum of Kshs. 240,000/= was rejected by the Respondent on the grounds that she does not recognize the Applicant as her tenant. Another Banker’s cheque for the months of November 2021 to January 2022 was forwarded by the tenant to the Respondent and it suffered the same fate. The Respondent’s letter dated 12. 8.2021 rejected the Banker’s cheque No. 535437 for the reasons that the tenant was illegally occupying the Respondent’s premises (The suit premises).

24. But was the tenant’s occupation of the suit premises illegal? I think the refusal by the Respondent to accept rent from the tenant was based on the fact that the tenant’s tenancy had expired. This notice seems to me to have been informed by the mistaken notion that there existed a written lease agreement between the parties herein and which expired on 14. 3.2021. I have already found that the relationship between the parties herein is not governed by a written lease agreement and therefore it amounts to a controlled tenancy. This therefore means that, any termination of the tenancy herein could only have been made by the issuing of a termination notice under Section 4(2) of Cap 301.

25. The Respondent/landlord having declined to accept rent from the tenant on two occasions, cannot turn around and purport to levy distress over the self same rent again. To this extent, I agree with the tenant that the rent arrears arose out of the conduct of the Respondent and she cannot be allowed to benefit from the circumstances created by herself. The Respondent ought to have appreciated that all along, the tenant herein was a protected tenant and she ought to have strictly adhered to the provisions of the Act to terminate the tenancy herein. On this issue, I do find that the Respondent was not entitled to levy distress against the tenant.

On Issue C 26. The Respondent at paragraph 8 of the replying affidavit has deponed that the tenant is liable to pay the sum of Kshs. 720,000/= for the unpaid rent. The tenant on its part has deponed at paragraph 15 of its supporting affidavit that it is ready and willing to deposit the total arrears in court at the cost of the landlady. There is evidence on the record that the landlady/Respondent has in the past rejected the rent paid to her by the tenant. In view of this past refusal, I do find that the tenant is entitled to deposit the rent at the Tribunal in the event that the Respondent continues to refuse to accept the said rent.

On Issue D 27. The tenant has deponed at paragraph 11(e) of its affidavit that the Respondent has disconnected water despite the fact that there are no unpaid water bills. The only response by the Respondent to this deposition by the tenant is to be found at paragraph 3(iv) of the Respondent’s replying affidavit where it is stated as follows;-“That despite the Applicant/tenant not paying their water bills, as a humane gesture, I issued another termination dated 3. 5.2021. .”The deposition by the tenant that there were no outstanding water bills as at the time the water was disconnected has not been sufficiently countered by the Respondent.

28. I am satisfied that the tenant’s application dated 5. 4.2022 is merited and I hereby allow the same in terms of prayers 3, 4, 5, 6 and 7 thereof.

On Issue E 29. The tenant’s reference dated 21. 6.2021 has been filed in objection to the Respondent’s notice to terminate tenancy dated 3. 5.2021. I have already found the tenancy between the parties herein to be a controlled tenancy and that being the case, the Respondent herein could only have terminated the tenancy by issuing the mandatory notice under Section 4(2) of Cap 301 which provides as follows:-“A landlord who wishes to terminate a controlled tenancy or to alter to the detriment of the tenant any term or condition in or right or service enjoyed by the tenant under such tenancy shall give notice in that behalf to the tenant in the prescribed form.”

30. The Respondent’s notice to terminate tenancy is dated 3. 5.2021 and has an effective date of 3. 7.2021. The proper effective/termination date in this case ought to have been 1. 8.2921 and not 3. 7.2021. This is in conformity with Section 4(4) of Cap 301 which states;-“No tenancy notice shall take effect until such date not being less than two months after the receipt thereof by the receiving party as specified therein.”A tenancy cannot be terminated within the month and to the extent that the notice herein sought to terminate the Applicant’s tenancy on 3. 7.2021, the same was defective.

31. Having arrived at the above conclusions, I will allow the tenant’s reference and pursuant to the provisions of Section 9(1)(b) of Cap 301, order that the tenancy notice dated 3. 5.2021 shall be of no effect.

32. Further and pursuant to the provisions of Section 9(3)(b), I will allow the Respondent to give another tenancy notice to the tenant within thirty (30) days from the date of this ruling if the Respondent so wishes.

33. The Respondent will bear the costs of the Reference.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF NOVEMBER 2022HON. CYPRIAN MUGAMBICHAIRPERSON11. 2022In the presence of;Mr. Mbuthia for the tenantMs. Munene for the landlady