[2021] KEBPRT 401 (KLR)
The Tribunal found that the landlord's application could not be granted because there was an existing interim order restraining the landlord from interfering with the tenant's possession, which had not been varied or set aside. Additionally, there was no consensus or clear evidence as to the amount of rent arrears...
Source-derived case information.
- Citation
- [2021] KEBPRT 401 (KLR)
- Parties
- Tenant: Sarah Mugo t/a Shiloh Loaf; Landlord: Charity Kabari Gacheni
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 572 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Landlord's Application for Leave to Levy Distress and Related Orders
- Outcome
- landlord's application dismissed
- Legal Topics
- Controlled Tenancy, Distress for Rent, Rent Arrears Dispute, Interim Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sarah Mugo t/a Shiloh Loaf
Tenant
Charity Kabari Gacheni
Landlord
Procedural Posture
Miscellaneous Application / Ruling on Landlord's Application for Leave to Levy Distress and Related Orders
Legal Issues
- 1 Whether the landlord is entitled to distress for rent arrears in the sum of Kshs 1,120,000/-.
- 2 Whether the landlord is entitled to a waiver of further court fees on distress for rent.
- 3 Whether the tenant should render vacant possession or be evicted from the suit premises.
Ratio Decidendi
The Tribunal found that the landlord's application could not be granted because there was an existing interim order restraining the landlord from interfering with the tenant's possession, which had not been varied or set aside. Additionally, there was no consensus or clear evidence as to the amount of rent arrears owed, with the tenant disputing the landlord's computation and the landlord failing to provide a rent book or statement of accounts as required by law. The mandatory requirement to keep a rent book under section 3(3) of Cap 301 was not satisfied. In the absence of clear, undisputed evidence of rent arrears and with the interim order in place, the Tribunal dismissed the...
Court Disposition
landlord's application dismissed
Orders
- The landlord's application dated 29th April 2021 is dismissed with no order as to costs.
- The tenant's application dated 8th June 2020 to be heard on 23rd August 2021.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
TRIBUNAL CASE NO 572 OF 2020 (NAIROBI)
SARAH MUGO T/ASHILOH LOAF......................................................TENANT
VERSUS
CHARITY KABARI GACHENI........................................................LANDLORD
RULING
The Landlord’s application dated 29th April 2021 seeks the following prayers;
1. Spent.
2. That this Honourable Tribunal be pleased to allow the Landlord/Applicant herein to distress for accruing rent arrears of Kshs 1,120,000/-.
3. That this honourable Tribunal be pleased to waive further court fees on distress for rent.
4. That the Tenant renders vacant possession of the suit premises L.R. No 6845/123failing which eviction does issue against the Tenant with the assistance of the OCS Ruai Police Station.
5. Costs.
The grounds upon which the application is brought may be summarized follows;
1. That the Tenant has accrued rent arrears to the time of Kshs 1,120,000/-.
2. That the Tenant has closed the suit premises through her tools of trade are inside the suit premises.
3. That the Landlord is entitled to access the suit premises and from therein earn a profit and benefit.
4. That the court fees be waived as the Landlord is not earning anything from the suit premises.
5. That failure by the Tenant to prosecute her application is a clear indication that she has lost interest in her claim.
The affidavit in support of the application restates the grounds upon which the application is brought. I have read and considered the same.
The application is not opposed. Be that as it may, I am enjoined to consider the said application alongside the pleadings in the file in order to determine whether the orders sought by the Landlord/applicant may be granted.
I do note from the record that the Tenant’s application dated 8th June 2020 has not been determined. The Landlady/Applicant herein had responded to the Tenant’s said application vide her affidavit sworn on 16th June 2020. On 11th June 2020 the Tribunal issued the following orders amongst other orders;
“(c) An order is hereby granted restraining the Defendant/Respondent by either herself, her servants, employees and/or agents from breaking into the suit premises, trespassing, evicting, harassing the Tenant and/or in any other manner interfering with her tenancy pending the hearing of the application inter partes.”
Like I have stated above, the Tenant’s application has not been heard inter partes. The above order was issued by the Tribunal pending the inter partes hearing of the Tenant’s application. The said order has not been varied and/or set aside. The pendency of the said order makes it difficult to issue any adverse orders against the Tenant.
The proper action to take in the circumstances would be to fix the application for hearing or to apply to have the orders varied and/or set aside.
The Applicant/Landlord seeks to be allowed to levy distress against the Tenant for rent arrears amounting to Kshs 1,120,000/-. There does not seem to be a consensus on the amount of rent owing. I note that the Tenant had requested to be allowed to pay rent arrears amounting to Kshs 258,000/- in the instalments. On 14th July 2020 when the matter came up for hearing, the Tenant declined to record a consent on the alleged outstanding rent of Kshs 426,000/-. She disputed the rent outstanding.
The Landlady in her replying affidavit sworn on 16th June 2020 states at paragraph.
“That it is true the Plaintiff/Applicant is in arrears of Kshs 426,000/- but not Kshs 258,000/- as she purports”.
I am therefore not able to say or find with certainty that the rent sought to be recovered is without disputation. The Applicant/Landlord has made an averment in her affidavit which is not supported by a statement of accounts. In this regard, the case of the Landlord would have been easier had the Landlord complied with the provisions of section 3(3) of Cap 301 which is in the following terms;
“The Landlord of a controlled tenancy shall keep a rent book in the prescribed form of which he shall provide a copy for the Tenant and in which shall be maintained a record, authenticated in the prescribed manner of the of the particulars of the parties to the tenancy and the premises comprised therein and the details of all payments of rent and of all repairs carried out to the premises”.
The requirement to keep a rent book is couched in a mandatory manner.
The Landlord in the instant case has not shown that he kept may such record, making it very difficult to make a finding on the rent owing considering the Tenant does not agree with the Landlord’s computation of rent owed.
In the circumstances, I am not satisfied that the Landlord’s application dated 29th April 2021 has merit, I do hereby dismiss the same with no order as to costs.
The application dated 8th june 2020 to be heard on 23rd august 2021.
The Landlord to serve.
HON. CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL
Ruling read and delivered virtually by Hon Cyprian Mugambi Ngutharithis 4thday ofAugust, 2021in the presence of Miss Munyangi for the Landlord and in the absence of the Tenant.
HON. CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL