[2021] KEBPRT 68 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO. 667 OF 2019 (NAIROBI)

ROBINSON MORIASI ONGATI……………………………LANDLORD/APPLICANT

VERSUS

DORICE KAMBUNI…………………………..………………TENANT/RESPONDENT

RULING

A. Parties and Representatives

1. The applicant is the landlord and owner of the suit premises in Plot No. LR. Sana Sana area Hazina Sub-location Nairobi rented out to the tenants (“hereinafter known as the Landlord”).

2. The firm of Ndemo Mokaya & Co. Advocates represent the Applicant/Landlord in this matter. ndemo@yahoo.com

3. The Tenant Dorice Kambuni rented space on Plot No. LR. Sana Sana area Hazina Sub-location Nairobi for the business (hereinafter known as the ‘tenant’)

4. The firm of Jackson Omwenga & Co Advocates represent the Respondent/Tenant in this matter.

B. The Dispute Background

5. On 16th July 2019 the Landlord moved this Tribunal by way of reference dated 16th July 2019 a notice of motion application under certificate of urgency dated 16th July 2019under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Tenant was seeking amongst other orders that pending the hearing and determination of the application that the Tribunal grant leave to the Applicant/Landlord to levy distress on the Respondent’s goods in order to recover outstanding arrears and further that the Tribunal order for vacant possession of the suit premises pending the hearing and determination of the suit

6. On 17th July 2019 the Tribunal ordered that the Renant/Respondent be served with the application and hearing notice.

7. On 16th September 2019 the matter came up for hearing and the Tribunal ordered that the parties appear before the ward administrator South B who was to prepare a report in respect of the disputed kiosk.

C. Jurisdiction

8. The jurisdiction of this Tribunal is not in dispute.

D. The Landlord’s Claim

9. The Landlord filed a notice of motion application under certificate of urgency and supporting affidavit dated 16th July 2019 which pleadings form the basis of this claim.

10. The Landlord filed a further supplementary affidavit dated 22nd November 2019.

E. The Tenant’s Claim

11. The Tenant has filed a replying affidavit dated 17th March 2021

12. The Landlord/Applicant has filed submissions.

F. List of Issues for Determination

13. It is the contention of this Tribunal that the issues raised for determination are as follows;

a) Whether the application by the Landlord to levy distress for rent arrears and granting of vacant possession is merited?

G. Analysis and Findings

Whether the application by the Landlord to levy distress for rent arrears and granting of vacant possession is merited?

14. Section 3(1) of the Distress for Rent 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 arrear 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.

15. Section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya grants the Tribunal its jurisdiction and provides that;

A Tribunal shall, in relation to its area of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of this Act, and in addition to and without prejudice to the generality of the foregoing shall have power—

(h) to permit the levy of distress for rent;

16. In this case the Landlord and the Tenant entered into an agreement on 23rd July 2018 for the kiosk in dispute. As per the agreement the monthly rent was Kshs. 4,000/- as from 1st May 2019.

17. The Landlord alleges that the Tenant has been in arrears from the month of July 2019which is why he approached this Honourable Tribunal seeking leave to be allowed to distress for rent.

18. The Tenant in their replying affidavit alleged that the applicant herein is not their Landlord and that the agreement provided by the Landlord is a forgery. They further claim that the space upon which they are carrying out their business does not belong to the Landlord but was instead allocated to the Tenant by the Nairobi City Council.

19. In rebuttal of the above the Landlord has provided various witness statements some of which are from previous tenants of the Landlord confirming that the said Tenant is actually a Tenant at the Landlord’s premises and the Landlord is well known to them.

20. The Landlord has also provided a letter from the ward administrator in furtherance of the order issued by the Tribunal on 16th September 2019 which also affirms that the Landlord is the owner of the kiosk and the two parties had an agreement.

21. The Tenant provided a letter dated 20th September 2019 claiming that she constructed a temporary structure on which she runs her business and that the space was allocated to her by Nairobi City Council.

22. The contents of the above letter were disproved through a letter from the Ward Administrator Nairobi City Council dated 29th January 2021 which stated that the letter provided by the tenant was forged. The authenticity of the letter was questioned since it was signed on behalf of the Ward Administrator

23. From the above it is evident that the Landlord has discharged his burden of proving that he is the owner of the suit premises and that the Respondent herein is his Tenant as required under Section 107 (1) of the Evidence Actwhich provides that;

(1) 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.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person

24. The Tenant has alleged that the agreement provided by the Landlord is a forgery but has failed to provide any evidence to prove the same. As a result, the Tribunal is persuaded to presume that the document was valid

25. Having established that the respondent herein was the Tenant of the Applicant/Landlord the main question before this Tribunal is whether the Landlord has the right to levy distress for rent

26. In the case of Flex Construction Solutions Ltd V Verandel Court Limited [2012] eKLRwhere the case of Raghavji Madhavji Vs. B M K Ogol Kisumu HCCC 122 of 1980was cited it was stated that;

“The landlord’s right of distress for rent is a common law remedy available to the landlord, without legal process, to secure payment of rent by seizing his tenant’s goods and chattels upon the premises in respect of which the rent is due. Whilst its practical application is now circumscribed by statutory protection in England as to make the remedy almost obsolete it is nevertheless still a common law remedy, which is statutorily enshrined in section 3(1) of our Distress for Rent Act Cap 293, and is a remedy much favored by Kenya landlords”

27. From the above it is evident that the right to levy distress for rent is founded on law and is a remedy available to any Landlord who is aggrieved by failure by their Tenant to adhere to payment of rent. In this case the Landlord has proved to this Tribunal that the Respondent is actually their Tenant and as such the Landlord would be entitled to this remedy. The Tribunal has observed the duration for which the Landlord claims arrears and sees no compelling reason to deny the Landlord the said remedy.

H. Orders

a) The Landlord’s application dated 16th July 2019 is hereby upheld in the following terms;

b) The Landlord shall prepare a statement of accounts outlining the arrears owed by the Tenant as from July 2019 to November 2021 at the rate of Kshs. 4,000/- per month as per the agreement and issue the same to the Tenant within 14 days.

c) The Tenant shall clear the outstanding arrears within 14 days and in default the Landlord shall be at liberty to distress for rent and to reenter and reclaim the suit premises through break in with the assistance of the OCS Industrial Area.

d) Reference compromised on similar terms.

e) The Landlord shall have costs

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 3rdday ofDecember, 2021 in the presence of Mumanyi forMokayafor theLandlord.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL