[2025] KEBPRT 177 (KLR)

Signature Oceanic Ventures Limited v Mbooni Ranching & Dairy Cooperative Society & another (Tribunal Case E206 of 2024) [2025] KEBPRT 177 (KLR) (27 February 2025) (Ruling)

Neutral citation: [2025] KEBPRT 177 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E206 of 2024

CN Mugambi, Chair

February 27, 2025

Between

Signature Oceanic Ventures Limited

Tenant

and

Mbooni Ranching & Dairy Cooperative Society

1st Respondent

Autoland Auctioneers

2nd Respondent

Ruling

Introduction 1. The Tenant’s notice of motion dated 16. 9.2024 seeks orders restraining the 2nd Respondent and any other Auctioneer from proclaiming or selling the Applicant’s tools of trade and that the Tenant be allowed unlimited access to the suit premises. The Applicant has also sought an order restraining the Landlord from in any manner interfering with the Applicant’s tenancy at Mbooni House along Moi Avenue, Mombasa (hereinafter the suit premises). Police assistance in the enforcement of the court orders has also been sought.

The Applicant’s depositions 2. The Tenant has sworn affidavits on 16. 9.2024 and 27. 11. 2024 wherein it has been deponed as follows;-a.That the Applicant has been a Tenant in the suit premises paying a monthly rent of Kshs. 157,000/= since 2009 and has carried out repairs, improvements and renovations in the suit premises at an estimated costs of Kshs. 15,000,000/=.b.That the suit premises has a leaking roof which the Landlord has failed to repair.c.That the rent arrears claimed by the Landlord accumulated during the Covid-19 pandemic period.d.That the Respondent/Landlord has instructed auctioneers to levy distress over disputed rent arrears and has further threatened to evict the Tenant.e.That it is true that the Tenant owes rent arrears in the sum of Kshs. 1,392,700/=.f.That the Tenant has variously deposited in the Landlord’s account Kshs. 1,500,000/=, Kshs. 200,000/= and Kshs. 580,000/= in the month of January 2024. g.That it is the Tenant who built the rooms on the first floor of the suit premises, the toilet being utilized on the ground floor and further reinforced the roof at a cost of Kshs. 15,000,000/=.h.That the Tenant has paid all the rent arrears and none is outstanding.i.That the Landlord has, despite reminders and demands, failed to repair the roof of the suit premises and inspite of all this, the Tenant has continued to pay rent.

he Landlord’s depositions 3. The Replying affidavit sworn by M/S Samuel Wambua Kituku on 23. 10. 2024 may be summarized as follows;-a.That the Tenant is merely delaying the payment of rent arrears amounting to Kshs. 1,392,700/=.b.That the Landlord is not evicting, harassing and/or intimidating the Tenant.c.That on 4. 08. 2017, the Tenant met the Landlord’s Board of Management where it was agreed that the Tenant would clear rent arrears amounting to Kshs. 461,800/=.d.That by its minutes of 8. 04. 2024, the Landlord noted that the Tenant owed rent in the sum of Kshs. 607,700/=.e.That the Landlord has not authorized the Tenant to carry out any repairs and/or renovations upon the suit premises.f.That the Landlord has never waived the payment of rent in favour of the Tenant.g.That as at 23. 10. 2024, the Tenant had rent arrears amounting to Kshs. 1,549,700/=.h.That the Landlord is unable to repair the roof, paint the premises and carry out other renovations due to the non-payment of rent arrears.i.That the society is not evicting the Tenant but is merely levying distress for rent arrears.

Analysis and determination 4. The only issue that arises for determination is whether the Tenant is entitled to the orders sought in his Application.

5. At the very outset, it is important to note that this dispute between the parties is a rent dispute and not one for eviction and/or termination of the Tenant’s tenancy. This is so because the Landlord has clearly stated that it is not interested in evicting the Tenant but is only interested in levying distress for alleged rent arrears.

6. Both parties have not exhibited any rent statements of accounts. What I have on the record is the deposition by the Landlord that the Tenant was in rent arrears amounting to Kshs. 1,549,700/= is at 23. 10. 2024 when the Landlord filed its replying affidavit. While responding to these deposition, the Tenant in his further affidavit has stated that he does not owe the Landlord any rent arrears as he paid to the Landlord’s account Kshs. 2,200,000/= in January 2024.

7. In view of the competing rival averments by the parties, it is not possible to state with certainty at this stage, whether or not the Tenant is in rent arrears. This situation would have been arrested if any of the parties had at least filed a statement of accounts or better still, if the Landlord had demonstrated its compliance 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 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.”Section 3(4) of Cap 301 proceeds to make it an offence punishable under the said Section to fail to adhere to the provisions of Section 3(3) above.

8. In view of the above findings, it is my view that the Application by the Tenant is merited and I proceed to allow the same.

9. Further, the Tenant will continue paying rent as and when it falls due.

10. The dispute as to the rent owed, if any, will be subjected to a full hearing.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF FEBRUARY, 2025. HON. CYPRIAN MUGAMBI - CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Masika for the Landlord and Mr. Bosire for the Tenant