[2022] KEBPRT 34 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 827 OF 2020 (NAIROBI)

STEPHEN JEFWA CHARO...........................................TENANT/APPLICANT

VERSUS

LUCY WANJIRU MBURU.................................LANDLORD/RESPONDENT

RULING

1. This Tenant’s/Applicant’s notice of motion application dated 5th October 2020 seeks a record twelve (12) orders. Summarized, the Tenant seeks orders directing the Landlord to reopen the business premises of the Tenant, restraining the Landlord from interfering with the Tenant’s tenancy, directing the Landlord to separate the electricity and water meters, directing the Landlord to accept the monthly rent in default of which the Tenant is to be allowed to deposit the same in court.

2. The Tenant has also sought that the rent payment be suspended from October 2020and to be compensated for loss of business amongst other prayers.

3. The application is supported by the affidavit of the Tenant, Major Stephen Jefwa Charo which I summarize as follows;

a. That the Tenant pays to the Landlady a monthly rent of Kshs 35,000/- and the Landlady holds his deposit of a similar amount.

b. That the Landlady locked the Tenant’s business premises from October 2020 to date.

c. That the Landlady has issued the Tenant with a valid notice to vacate the premises.

d.That the Tenant has renovated the suit premises at a cost of Kshs 2,000,000/-.

e. That the Tenant is willing to clear the rent arrears as soon as the premises is opened.

f. That the Tenant admits to defaulting in rent payment for the months of September and October due to covid 19 effects.

g. That the Landlord should pay to the Tenant the sum of Kshs 2,000,000/- if she is not willing to open the suit premises.

h. That the Landlord closed the premises in bad faith and is using dubious means to evict the Tenant while there is a legal process that ought to be followed to meet her desires.

4. The application is opposed. The Landlady in her replying affidavit sworn on 13th October 2020 states;

a. That she has never refused to accept rent from the Tenant, the Tenant only wishes to stay in the suit premises without paying rent.

b.That the rent unpaid as at the time of swearing her affidavit was Kshs 99,000/-.

c. That the arrears alleged to have been done by the Tenant and the renovations are non existent.

5. Both parties have filed their submissions. I have considered them in this ruling. It is the Tenant’s view that the Landlord has not demonstrated sufficient cause as to why the application should not be allowed, it is his further view that the Landlord is seeking the reopening of the premises closed by himself. The Landlord has also during the pendency of this suit come up with a notice to vacate directed at the Tenant. That it is the best interests of justice that the application be allowed.

6. The Landlady on her part submits that those proceedings will remove her from her rental income. That the Tenant having been served with a notice to terminate tenancy, the court should not entertain these proceedings since the Landlord/Tenant relationship between the parties has lapsed.

7. The issues that arises for determination in this application is whether the Tenant is entitled to the orders sought in his application.

a. There is no dispute that the Tenant was in rent arrears when he filed the notice of motion dated 5th October 2020. The main contention in the said notice of motion was the closure of the Tenant’s business premises by the Landlady which the Tenant contends was illegal. I understand and take the view that the Landlord locked the premises in an attempt to recover her rent arrears. The correct approach that the Landlord should have taken was to levy distress for rent under section 3 of Cap 293 and not locking down the premises.

b. I further hold the view that locking the Tenant’s business premises was an attempt at terminating the tenancy herein. That mode of termination is illegal as the Landlord ought to have followed the procedure provided for under section 4 of Cap 301. Under that section, the Landlord is obligated to serve the Tenant with a notice to terminate the tenancy for any of the reasons provided for under section 7 of the Act (Cap 301). The Landlord did not issue any such notice. It is also important here to state that distress for rent is not to be equated to termination of tenancies and parties cannot be allowed to terminate controlled tenancies in the guise of distressing for rent. I find the actions of the Landlord in locking up the Tenant’s premises to have been illegal and acts of impunity and bad for good order and proper conduct of business between the parties.

c. The Landlord has submitted that she issued the Tenant with a notice to vacate and therefore the court should not entertain these proceedings. The notice the Landlord alludes to is the one annexed to her submissions and dated 25th March 2021. The notice was obviously issued after the Tenant had filed his complaint and application. It does not answer to and cannot cure the illegal actions of the Landlord before the notice was issued. I also find that the submissions in regard to the notice do not form part of the case before the Tribunal and raising those concerns this late notice would only serve to embarrass the defence of the Tenant.

d. If the Landlord is keen on following through with the enforcement of the notice, then she ought to make the necessary applications under the Act. I am therefore not able to make any further comments on the issue of the notice dated 25th March 2021.

8. In conclusion, I therefore make the following orders;

a. That the Landlord is ordered to reopen the Tenant’s business premises immediately and in default, the Tenant to break in and obtain possession of the premises with the assistance of the OCS Ruai Police Station.

b. That the Landlord is restrained from unlawfully interfering with the Tenant’s quiet occupation and lawful enjoyment of the suit premises known as Utawala Benedicta – No. 6845 pending the hearing of the complaint.

c. That the Landlord is at liberty to lawfully distress for rent (if any).

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari (Chairman) this7thday of March 2022in the presence of Miss Muthiefor theLandladyand in the absence of the Tenant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL