[2022] KEBPRT 721 (KLR)

Silverdash Limited v Walala (Tribunal Case E398 of 2022) [2022] KEBPRT 721 (KLR) (Civ) (23 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 721 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E398 of 2022

Gakuhi Chege, Vice Chair

September 23, 2022

Between

Silverdash Limited

Applicant

and

Joyce Walala

Respondent

Ruling

1. The landlord herein moved this Tribunal through a reference dated 5th May 2022 under section 12(4) of Cap. 301, Laws of Kenya seeking for leave to levy distress for rent and terminate the tenant’s tenancy on account of failure to pay rent, service charge and electricity bills which had accumulated to Kshs.393,952/-.

2. The landlord simultaneously filed a motion of even date supported by the affidavit of Florence Schulz seeking the same orders. Among the annexures attached to the supporting affidavit are undertakings entered into between the tenant and landlord as follows:-i.Annexure ‘SL-3’ dated 22/11/2021 for Kshs.98,208/-.ii.Annexure ‘SL-4’ dated 1/12/2021 for Kshs.177,546/-.iii.Annexure SL-5’ dated 31/12/2021 for Kshs.122,546/-.iv.Annexure ‘SL-6’ dated 24/1/2022 being demand letter for Kshs.164,760/-.

3. The relationship between the parties herein is based on a licence agreement marked ‘SL-2’ which appears to be a draft and is as such unexecuted rendering the tenancy to be controlled under section 2(1) of Cap. 301, Laws of Kenya. The landlord deposes that it pays rent to the head lessor on a monthly basis and stands to suffer irreparable damage and loss if the tenant is allowed to continue staying in the premises without paying rent which was unfair and unjust.

4. As such, it is the applicant’s contention that it is in the interest of justice that the prayers sought be granted.

5. Upon being served with the application, the tenant instead of filing a response thereto filed an application dated 19th May 2022 seeking various reliefs against the landlord but admitting that he was in rent arrears at paragraph 8 of the supporting affidavit claiming that he has been hampered by the persistent harassment and disconnection of service by the Respondent making it difficult for him to make money.

6. The tenant further contends that he has not been served with any written notice to vacate from the suit premises as provided for in law.

7. The application dated 5/5/2022 was directed to be canvassed by way of written submissions but only the landlord complied.

8. I am required to consider the following issues in this matter:-a.Whether the landlord is entitled to the reliefs sought in the application dated 5/5/2022. b.Whether the tenant’s application dated 19/5/2022 is properly on record.c.Who is liable to pay costs of the suit?

9. I hasten to note that the landlord’s application dated 5th May 2022 is not opposed by the tenant in absence of any response thereto. Order 51 Rule 14 of the Civil Procedure Rules, 2010 provides that any Respondent who wishes to oppose any application may file any one or a combination of the following documents:-i.A notice of preliminary objection and/orii.Replying affidavit and/oriii.A statement of grounds of opposition.

10. The Respondent has not filed any response in line with the foregoing provision of the law and as such the application remains unopposed and is for allowing.

11. The Respondent admits through his affidavit in support of the application dated 19/5/2022 that he is in arrears of rent. The most cardinal obligation of a tenant is to pay rent so as to enjoy peace and quiet use of a demised premises. A tenant who is in breach of payment of rent covenant cannot assert the right to enjoyment of peace and quiet against the landlord who uses lawful means like distress to recover rent. I am therefore not convinced that the tenant is entitled to the reliefs prayed for in the application dated 19/5/2022. In any event the tenant filed the said application without any complaint under section 12(4) of Cap. 301Laws of Kenya which would lay the foundation of granting the prayers sought. It amounts to filing an application without filing a plaint which is procedurally untenable under order 40 of the Civil Procedure Rules.

12. I however note that the landlord has not complied with section 4(2) ofCap. 301, Laws of Kenya, 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 a tenancy, shall give notice in that behalf to the tenant in the prescribed form”.

13. In view of non-compliance with the said provision, I am unable to issue an order of eviction against the tenant despite the application being unopposed. I shall therefore decline to allow prayer 4 of the Landlord’s application dated 5th May 2022.

14. As regards costs, the same are in the Tribunal’s discretion under section 12(1)(k) ofCap. 301 Laws of Kenya but always follow the event unless for good reasons otherwise ordered.

15. I have no good reasons to deny the landlord costs of the reference.

16. In conclusion therefore, the final orders which commend to me in this matter are:-i.The landlord’s application dated 5th May 2022 is allowed in terms of prayers 2 and 3 thereof without the necessity of any further hearing of the reference herein.ii.The tenant’s application dated 19/5/2022 is hereby dismissed for non-compliance with section 12(4) of Cap. 301, Laws of Kenya.iii.Costs of the reference assessed at Kshs.20,000/- are hereby awarded to the landlord.

It is so ordered.

RULING DATED, SIGNED AND VIRTUALLY DELIVERED THIS 23RD DAY OF SEPTEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of :-Mwangi for the Applicant/LandlordNo appearance for the Tenant