[2022] KEBPRT 868 (KLR)

Samuel Kibandi aka Jacksam v Wambui & 2 others (Tribunal Case E498 of 2022) [2022] KEBPRT 868 (KLR) (Civ) (20 December 2022) (Ruling)

Neutral citation: [2022] KEBPRT 868 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E498 of 2022

Andrew Muma, Vice Chair

December 20, 2022

Between

Samuel Kibandi aka Jacksam

Applicant

and

Rosemary Wambui

1st Respondent

Stephen Wachira Wanjohi

2nd Respondent

Vincent Osewe

3rd Respondent

Ruling

A. Parties and their Representative 1. The applicant Samuel Kibandi Aka Jacksam is the tenant in this matter. The firm of Faith Akoth Oketch & Co represent the Tenant in this matter.

2. The 1st respondent is the Landlady and the owner of the disputed premises. The Firm of Gicheru, Nzame, Nyangena & Associates represent the 1st respondent in the matter herein.

3. The 2nd respondent has been joined in this matter as the agent managing the premises in question.

4. The 3rd respondent has been joined in this matter as the caretaker for the

B. The Dispute Background. 5. The tenant avers that he has been running his wines and spirit business on the premises up until the time when the respondents closed the premises and welded the door denying him access to the premises.

6. The tenant moved this honorable tribunal vide a reference dated May 24, 2022 and a notice of motion application dated even date seeking inter alia the following orders:a.That the application be certified as urgent.b.That the respondents re-open the suit premise to enable the tenant resume businessc.That the respondents be restrained from evicting, harassing and/or trespassing upon reinstatement of the tenant on the premises.

7. The tenant obtained orders dated June 29, 2022 certifying the matter as urgent and directing the respondents to reopen the business premises and reinstate the tenant or in the alternative, the tenant is at liberty to break into the premises to regain access.

8. The parties were directed to file their submissions in support of their cases.

C. Jurisdiction 9. The jurisdiction of this tribunal is in dispute.

D. The Tenant’s Case 10. The tenant contends that he has lost his only source of income since the respondents closed down the premises where he was running and wines and spirits business.

11. In the submissions dated September 28, 2022, the tenant avers that he has been occupying the premises for over 6 years and has been paying rent timeously. The initial deposit paid was Kshs 120,000. 00 and monthly rent of Khs 20,000. 00.

12. However, sometime in May 2022, the 1st respondent closed off the premises locking out the tenant from the business premises. This occasioned him great loss as most of his properties and stock was destroyed by the actions of the 1st respondent.

13. The tenant avers that the tribunal is clothed with requisite jurisdiction to hear the matter noting that he used the premises to run the business.

14. The tenant submits that when his goods were removed from the suit premises, he lost valuables to a tune of Kshs 500,000. 00. Coupled with the loss of stock and the loss of business, the tenant prays for a cumulative Kshs 1,464,010. 00 having proved his case beyond reasonable doubt.

E. The Landlord’s Case 15. Vide a replying affidavit sworn on July 7, 2022 by Rosemary Wambui, the 1st respondent, and submissions dated October 17, 2022 the 1st respondent states that the tenant herein is a stranger.

16. The 1st respondent denies there being a tenancy relationship between the two. Further, she only acknowledges that the purported tenant had been given space to store his good but not run a business. It was on his volition that he begun running business on the premises, which business brought questionable characters to her property.

17. Further, she notes that there was no property destroyed when she closed the premises as the same was removed in the presence of the tenant and as such, he is not entitled to any damages or costs whatsoever.

18. The 2nd and 3rd respondents neither entered appearance nor filed any documents in the reference herein.

19. On the issue of rent payment, the 1st respondent denies having ever received any amount from the tenant as deposit for the premises. Further, she avers that there is no evidence of payment of the deposit amount and as such, he is not entitled to any rent amount.

F. Issues for Determination 20. I have carefully analyzed all the pleadings before this honorable tribunal, all submissions by parties herein and relevant evidence adduced before this tribunal. The following are the issues for determination;a.Whether the tribunal has jurisdiction to hear and determine the dispute.b.Whether the tenant is entitled to the reliefs sought herein.

G. Analysis of Law and Determination. a. Whether the Tribunal has jurisdiction to hear and determine the dispute. 21. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act rightly delimits the jurisdiction of the tribunal. The tribunal is empowered to hear and determine disputes arising from catering establishments, shops and any other premise that fall under the ambit of controlled tenancy.

22. In the instant case, the 1st respondent does not deny having allowed the Tenant the space to use the premises as a storage. The only contention is that the 1st respondent did not allow the tenant to run the particular business that he was running as it brought questionable characters to the premises

23. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act defines a shop as a ‘premises occupied wholly or mainly for the purposes of a retail or wholesale trade or business or for the purpose of rendering services for money or money’s worth’. From the definition above, the elucidation does not delimit what should be done in the premise. The only caveat is that there should be monetary income derived from the use of the premises.

24. Further, the Act ‘defines rent as includes any sum paid as valuable consideration for the occupation of any premises, and any sum paid as rent or hire for the use of furniture or as a service charge where premises are let furnished or where premises are let and furniture therein is hired by the landlord to the tenant or where premises, furnished or unfurnished are let with services’. The tenant has adduced certified M-Pesa statements wherein he made periodic payments to the 1st respondent which he claims to have been rent. There however has been no evidence of payment of the rent deposit as claimed by the tenant.

25. Though the 1st respondent has alleged this not to be true and claims that the monies paid were for other purpose, the 1st respondent has not proven this claim.

26. Further, in the undated witness statement signed by the 1st respondent, the 1st respondent is continually probating and re-probating the fact on existence of a tenancy relationship. The 1st respondent admits that she allowed the tenant to use the space only as storage until he found a better place to carry out his business. However, on other instances she admits that the tenant was running the business illegally as he did not have any business permit. Further, she admits that his act of carrying out business on her premises brought around questionable characters.

27. To this end, seeing that the 1st respondent does not deny having offered the space to the tenant, I find that there existed a tenancy relationship and that the tribunal has jurisdiction to hear and determine the matter herein.

b. Whether the Tenant is entitled to the reliefs sought herein. 28. On the issue of the reliefs sought, I find that this is double-pronged. The issue has two limbs which shall be discussed independently.

i. Reimbursement of costs incurred during renovations. 29. The honourable tribunal has assessed the documentation placed before it for the purposes of determining the costs that may be reimbursed for the renovations that the Tenant may have made.

30. The parties were directed to file their submissions addressing the issue of assessment of amount payable. The 1st respondent did not file any evidence to the contrary but denies there being any renovations made to the premises stating that they were in good condition. On the other hand, the tenant has annexed several receipts showing purchases made for the purposes of renovating the premises.

31. The Schedule of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act indicates the implied terms and conditions. However, the same is not cast in stone as where there are necessary renovations, critical to the operation business, the Tenant may make the renovations and seek reimbursement from the Landlord.

32. In the instant case, the tenant has adduced receipts for the purchases made which the tribunal has duly considered. It is worth noting that the tenant may not claim for reimbursement for any items that he purchased that were fanciful and are his own for use. Further, the expenses must be of reasonable standard as they are optional. The reimbursements that the tenant may seek from the landlord are for the essential aspects of the business, without which he could not run the business and are primarily under the ambit of the landlord to effect.

33. Flowing from the above, with critical evaluation of the evidence presented before it, the tenant may only be reimbursed to a tune of Kshs 20,000. 00 for the renovations made particularly, the cement works. As noted above, most renovations made were for use of spaces as bar.

ii. Damages for loss of business. 34. In his submissions, the tenant avers that he lost substantial income for the duration when the premises were locked. However, it is worth noting that this honourable tribunal had granted orders for the 1st respondent to re-open the premises. In the alternative, the tenant had been granted leave to break into the room and access the premises pending the hearing and determination of the suit.

35. To this end, the tenant has not demonstrated any difficulty encountered in enforcing the court orders. As such, any loss incurred for the period when the premises where locked may be attributed to his indolence. It is worth noting that the law does not aid the indolent. Where the tenant had been granted orders but failed to enforce them and/or report any difficulties in enforcing them, he cannot revisit his indolence against the rival party.

36. In this regard, I find that the tenant is not qualified for damages for loss of business. This is because, the tenant has not demonstrated the loss suffered by tendering business accounts. It is noteworthy that such losses are quantifiable and must be specifically pleaded.OrdersThe upshot of the tenant’s application dated May 24, 2022 is compromised on the following terms;1. The tenant to collect his goods if any from the landlords premises.2. The landlord to reimburse the tenant a total sum of Kshs 20,000. 00 for the renovations made.3. Each party shall bear its own cost.

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 20TH DAY OF DECEMBER, 2022 IN THE ABSENCE OF PARTIES.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL