[2021] KEBPRT 636 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 943 OF 2020 (NAIROBI)

SIMEON GUY OBIYE...........................................TENANT/APPLICANT

VERSUS

SUSAN NUNGALI GACHUI...............LANDLORD/1ST RESPONDENT

KIMANI WANYOIKE......................CARETAKER/2ND RESPONDENT

RULING

The Applicant’s application dated 2nd December 2020seeks the following orders;

a. Spent.

b. That this honourable court issues appropriate orders to compel the Respondents to immediately open up the suit premises to save the Applicant/Tenant further loss of business and accompanying financial losses occasioned to him pending the hearing and determination of this matter in default, the Tenant/Applicant be allowed to break into the suit premises and that the OCS Huruma Police Station supervises the same to establish any loss and/or damage on the goods and /or tools of trade/equipment therein.

c. That an order of interim injunction does issue against the 1st Respondent through the 2nd Respondent, their agents, servants and/or any person or entity working under their names or instructions from interfering with quiet or peaceful occupation of the suit premises in whatsoever manner levying distress, evicting, letting, subletting and/or apportioning space thereof the suit premises harassing, threatening and/or intimidating the Tenant/Applicant and/or interfering with the peaceful exercise of his rights and responsibilities under the tenancy pending the hearing and determination of this matter.

d. That the Landlord through the 2nd Respondent is hereby ordered to restore the Plaintiff’s tenancy and his stocks and tools of trade in their original quality and quantity and in default they be and are hereby ordered to compensate for any losses and (sic) thereof.

e. The OCS Huruma Police Station to ensure compliance.

f. Costs.

The grounds upon which the application is premised can be summarized as follows;

1. That the Respondents have welded the metallic doors in the suit premises with the Tenant’s perishable goods and other tools of trade inside.

2. The Respondents are bent on illegally evicting the Applicant without issuing any lawful notice of termination of tenancy.

3. The Respondents have locked in the Tenant’s perishable goods which have now rotten occasioning the Tenant losses.

4. The acts of the Respondents are unfair and unlawful.

The application is supported by the Applicant’s affidavit sworn on 2nd December 2020 which I proceed to summarize as follows;

1. That the Tenant has been in the suit premises for the last 23 years paying a monthly rent of Kshs 20,000/- regularly, having rented the same on or about 29th September 1997.

2. That the Landlord instructed the Applicant to pay rent directly to her in March 2020 instead of making payments to Mwarizo Properties Management Ltd.

3. That the Landlord has failed to reconcile her rent accounts with the said agent on the one hand, and with the Applicant on the other hand.

4. That the rent owing is in dispute.

5. That the Landlord locked up the Tenant’s premises on 15th September 2020, an event the Tenant holds to be illegal and in contravention of Cap 301 for the lack of the issuance of a lawful notice to terminate the Tenant’s tenancy.

The 1st Respondent/Landlady has opposed the application vide his replying affidavit sworn on 24th February 2021 which can be summarized as follows;

1. That the 2nd Respondent is the 1st Respondent’s agent for the purposes of this reference/application.

2. That the Tenant/Applicant has been paying rent of Kshs 20,000 until February 2020.

3. That the Tenant/Applicant is taking advantage of the changeover in rent payment from the agent to the Landlord to claim he had paid rent to the agent which he has failed to prove by production of receipts.

4. That the Tenant has never responded to the Landlord’s demand for rent done vide the Landlord’s letter of demand dated 27th October 2020.

5. That as atFebruary 2021, the Tenant was in rent arrears amounting to Kshs 240,000/-.

When this application came up for hearing on 25th February 2021,both parties were granted leave to file any further affidavits they wished to file and also to file and exchange written submissions.

As at the time of writing this ruling (on 29th March 2021) none of the parties had filed any further affidavits and/or their written submissions. I am therefore left to contend with the rival averments in their respective affidavits.

The Applicant’s application and his supporting affidavit seem to revolve around the fact that the locking up of his premises is illegal and contravenes unspecified provisions of Cap 301 of the Laws of Kenya.

The application also weighs heavily on the allegation that the Landlord, upon taking over the business of collecting rent from Mwanzo Properties Management Ltd, she has failed to reconcile her accounts, thereby demanding from the Applicant rent he has already paid.

The Landlord’s position on the other hand is that the Tenant owes rent in the sum of Kshs 240,000/- as at February 2021.

It is common ground between the parties that Mwanzo Properties Management Ltd was the agent collecting rent on behalf of the Landlord up to and including September 2020.

It is also common ground that the Landlady discontinued the services of Mwanzo Properties Management Ltd and advised the Tenant to be paying rent directly into her account. In the circumstances of this kind of a dispute, one would have expected both contestants to provide statements of accounts. The Applicant’s application which I find long on prayers and short on facts does not shed light as to the amount of rent paid to the then agent and later to the Landlady. These are facts within the Tenant’s knowledge.

On the other hand, the Landlord/Respondent has not provided any evidence to prove his averment that the Tenant owes her the sum of Kshs 240,000/-. A report from Mwanzo Properties Management Ltd as at the time their services were terminated would have sufficed.

The Landlady has not denied the averments at paragraph 9 of the Tenant’s affidavit. This is the paragraph that alludes to the illegal closure of the Applicant’s business premises by the Landlady. This silence and lack of a specific response is TELLING seeing as it is that the Landlady has made specific responses to the allegations made by the Tenant under paragraph 3, 6 and 7 of the Tenant’s affidavit. In the absence of that specific response, it remains that the Landlady has illegally locked the Applicant’s premises in contravention of section 4(1)(2) of Cap 301 of the Laws of Kenya.

From the foregoing, I am also not able to state with any certainty the amount of rent owed (if any) by the Tenant, that is a matter best left for evidentiary proof by any means chosen by the parties.

In this circumstances, I allow the Tenant’s application dated 2nd December 2020 in terms of prayer (b) and (c) of the said application.

It is so ordered.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

Ruling signed and delivered virtually by Hon Cyprian Mugambi Nguthari this 9thday of April, 2021 in the presence of Mr Mambiri for the Tenant and in the absence of the counsel for theLandlord.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL