[2021] KEBPRT 394 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 291 OF 2021 (NAIROBI)

STEPHEN WANYEE ROKI T/A

STEVIE GENERAL CONTRACTORS LTD........................TENANT/APPLICANT

VERSUS

SIKO WORME................................................................LANDLORD/RESPONDENT

RULING

The Tenant/Applicant’s notice of motion dated 27th May 2021 seeks the following orders;

a. Spent

b. That this court do issue orders directing the Landlord/Respondent to reopen the rented basements premises and allow the Applicant/Tenant to inspect and carry away his tools of trade and properties pending the hearing and determination of this reference.

c. That the OCS Huruma Police Station do ensure compliance with the orders issued herein.

d. That damages incurred for the illegality be provided for.

e. Costs.

The grounds upon which the application is brought and the contents of the affidavit in support thereof may be summarized as follows;

1. That the Landlord has been intimidating and harassing the Tenant with a view of having the Tenant out of the premises.

2. That the Tenant has not breached the terms of the tenancy agreement.

3. That the Tenant has undertaken improvements on the business premises with consent of the Landlord.

4. That the Landlord has locked the premises and has refused to unlock the same.

5. That the Tenant is willing to vacate the premises as he continues to incur losses, but subject to losses incurred calculated.

6. That the Tenant has a lease agreement for one year at an agreed monthly rent of Kshs 13,000/=.

7. That the Tenant’s business involves manufacturing of animal feeds and bone meal which requires electricity.

8. That the transportation and fixing of machinery for the business has costed the Tenant Kshs 70,000/-.

9. That the Landlord allowed the Tenant to continue with his business without interference.

10. That a lease agreement was to be signed on or before 20th March 2021.

11. That after commencing production, the Tenant learnt that the Landlord had leased the premises to another Tenant.

12. That the Landlord required the Tenant to vacate by end of March 2021, March rent was paid.

13. The Landlord declined the April 2021 rent, he revised the transaction after Tenant had paid.

14. That the Landlord thereafter disconnected electricity and locked the premises.

15. That the Tenant is willing to vacate the demised premises subject to damages for the illegal and malicious acts of the landlord.

Counsel for the Tenant/Applicant submitted orally in support of the Tenant’s application. In summary, he submitted as follows;

1. That he relied on his client’s affidavits dated 27th May 2021 and 15th June 2021.

2. That the Tenant came into the premises in February 2021 and March 2021.

3. That after the landlord disconnected electricity, orders for reconnection of the same were issued but the Landlord disobeyed the same.

4. The Landlord declined the rent for April and has locked the premises since then. The Tenant has not operated the business since then.

5. That no rent is owed to the Landlord who is seeking by his actions to levy distress without leave of the Tribunal.

In his oral submissions in reply, counsel for the Landlord submitted as follows;

1. That the Landlord is not opposed to the Tenant vacating the premises.

2. That the only issues on the rent payable for three months.

3. That it is true that rent for April was returned to the Tenant.

4. That the business of the Tenant is risky and dangerous to the neighbourhood.

5. That no notice to vacate was served upon the Tenant.

6. That the tenant ought to pay rent since he refused to vacate.

7. That if the Tenant pays the here months rent, he can collect his goods.

In further rejoinder, counsel for the Tenant/Applicant stated;

1. That there was no notice to terminate served upon the Tenant.

2. That his client’s/Tenant’s business was known to the Landlord at the commencement thereof.

3. That the letter from the Chief and the Ministry only came in April 2021.

It is common ground that both parties went out of this tenancy relationship. The only point of disagreement is whether or not the Tenant ought to pay rent for three months (April, May and June) or not.

The Tenant/Applicant contends that the lease agreement was not written and the same was for the term of one year. The Landlord’s position is that the lease was for a storage facility for one month at the agreed rent of Kshs 16,000/-. Either way, the tenancy was not reduced into writing and was also for a period of less than five years. It is therefore clear that the tenancy herein was a controlled tenancy.

The Tenant has stated that he had paid rent for February and March 2021. This position is not challenged by the Landlord. the Landlord has further confirmed that he declined to receive the rent for the month of April 2021 because the Tenant had already been informed that his business was dangerous and a risk to the neighbourhood.

The Landlord has also confirmed that though he did not issue any notice to terminate the tenancy, he proceeded to disconnect the Tenant’s electricity and lock the Tenant’s business premises. The Tenant herein being a protected Tenant, the Landlord was bound to follow the provisions of section 4(2) of Cap 301 which is in the following terms;

“A Landlord who wishes to terminate a controlled tenancy or to alter to the detriment of the Tenant any term of condition in or right or service enjoyed by the Tenant under such a tenancy shall five notice in that behalf to the Tenant in the prescribed form.”

The Landlord in seeking to terminate the tenancy herein failed to issue the required notice to the Tenant. In disconnecting electricity and locking the Tenant’s premises and declining to accept the rent for April 2021, the Landlord acted illegally and in contravention of section 4(2) of Cap 301.

The Landlord continued in his acts of illegality and defiance when he failed to reconnect electricity to the Tenant’s premises as ordered by the Tribunal on 25th March 2021.

The Landlord has continued to lock the business premises since April 2021 and I do hold the continued closure of the Tenant’s business premises to be illegal. The Tenant is unable to carry out any business in the premises and now only requires that his machinery be released to him unconditionally.

Having found the closure of the Tenant’s business by the Landlord illegal, it would be inequitable to allow the Landlord to profit from his illegal acts by ordering the Tenant to pay the rent accrued during the said closure. I do hold that the landlord is not entitled to the three months’ rent or indeed pay rent from April 2021. I further make the following orders:

1. That the Respondent Landlord is directed to re-open the Tenant’s business premises and allow the Tenant/Applicant to inspect and carry away his tools of trade his other properties unconditionally.

2. That the OCS Huruma Police Station do ensure compliance and maintain peace and security in the execution of order 1 above.

3. That the Landlord will bear the costs of the application.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

RULING DATED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 23RD DAY OF JULY 2021 in the presence of Mr Mainafor theTenant andMr Mutonyifor the Landlord.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL