[2025] KEBPRT 272 (KLR)

Vantoh v Njuguna & another (Tribunal Case E156 of 2023) [2025] KEBPRT 272 (KLR) (3 April 2025) (Judgment)

Neutral citation: [2025] KEBPRT 272 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E156 of 2023

N Wahome, Chair & Joyce Murigi, Member

April 3, 2025

Between

Paul Oduor Vantoh

Applicant

and

Robert Kiarie Njuguna

1st Respondent

Clifton Wafula

2nd Respondent

Judgment

1. The Tenant/applicant filed the present suit being Kakamega BPRT case No. E156 of 2023 against the Landlord and which was originated by the reference and Application both dated the 3rd October 2023. In the reference, the Tenant grieved that:-“The landlord has been harassing, intimidating me with threats of eviction by sending auctioneers in my business premises, issuing me with an illegal notice of terminating my tenancy dated 20th September 2023 attached herein and also took away my business goods without an order from the Rent Tribunal Court or any other court of law contrary to Cap. 301 Laws of Kenya. I request the Rent Tribunal court and OCS Busia (k) Police Station to order the Landlord and auctioneer to stop harassing me with threats of eviction and return back my business goods.

2. In the notice of motion of the even date, the Tenant sought for the following reliefs:-i.Spentii.That this Honourable court protect and grant leave to the applicant/Tenant to continue with his normal business without any interference from the rogue landlord.iii.That the Honourable court gives orders/injunction barring the landlord from issuing me with illegal notice also instructing the auctioneers from taking my properties hence paralyzing my business.iv.That I have not defaulted in paying my rent as it is alleged by the Landlord.v.Costs be provided for.

3. Subsequent to the Tenant’s suit the Landlord filed case No. BPRT E171 OF 2023 at Kakamega. In the reference thereof and dated 2/11/2023 the Landlord complained that:-“The Honourable court do issue orders of Termination of tenancy between the Applicant/Landlord and Respondent/Tenant due to non-payment of rent”.

4. Accompanying the reference was a notice of motion application of the even date. It was anchored on Sections 4, 7(b) and ( c) of the Landlord and Tenant (shops, Hotels and Catering Establishments) Act (Cap 301) hereinafter referred to as “the Act”. The reliefs sought in the application are:-i.That this matter be certified as urgent and that it be heard on the 15th November 2023 upon consolidation with BPRT case No. 156 of 2023 as they relate to the same parties.ii.That his Honourable court do issue orders of termination of tenancy between the Applicant/Landlord and Respondent/Tenant due to non-payment of Rent.iii.That the Respondent/Tenant be ordered to pay rent arrears of Kshs.166,000/- to the Applicant/Landlord.iv.That the Respondent/Tenant be compelled to pay any outstanding rent at the time of vacating the premises.v.That the OCS Busia Police Station be mandated to effectuate orders of this court.

5. The parties appeared before the court for mention for directions on the hearing of the Application in both BPRT case No. E156 of 2023 and E171 of 2023 on the 15th November 2023. By consent of the parties both files were consolidated with this file being the lead file. The parties were also to sit and reconcile the rental accounts but this does not seem to have happened.

6. It is also important to observe that one cliffon Wafula a purported agent of M/S Munex Auctioneers was denounced by the director thereof one Mr. Oliver Simiyu in sworn evidence rendered in court on the 28/2/2024. By that evidence, M/S Munex Auctioneers were excused from these proceedings and awarded costs at Kshs.6,000/- payable by the Landlord.

7. We note and appreciate that before M/S Oliver Simiyu and by extension M/S Munex auctioneers were excused from these proceedings. The landlord and Mr. Clifton Wafula had been summoned by this court to tell their story but had ignored the summons. This was specifically the summons dated 16th February 2024 and 27th February 2024.

8. By the Ruling dated 17th June 2024, this court identified the issues for determination in this matter and gave directions on the hearing of the references dated 3rd October 2023 and 2nd November 2023 which were by the Tenant and Landlord Respectively. Some of the issues identified were:-a.Whether there was a valid notice for the termination of the Landlord/Tenant relationship herein.b.Whether the Tenant is in rent arrears and if at all, how much.c.Whether the distress for rent by the landlord was lawful.d.Whether the Tenant should have the goods attached from him restored.e.Who should bear the costs of the suit.

9. This court further directed the parties to comply with order 11 of the civil Procedure Rules in preparation of the hearing of the references herein and which was done. The Tenant testified on the 14th October 2024 and called one witness namely Mr. Dennis Okaduku Ongara who testified as “TW2”. On his part, the landlord opted to rely on the pleadings on record.

10. In brief, the Tenant filed the following pleadings, documents and submissions:-i.The reference and notice of motion application both dated the 3rd October 2023. ii.The list of documents dated the 3rd October 2023. iii.The further affidavit sworn on the 14th November 2023. iv.The supplementary affidavit sworn on the 11/12/2023. v.The submissions dated 8th December 2023 on the applications dated 3/10/2023 and 2/11/2023. vi.The Replying Affidavit sworn on the 10th November 2023 in answer to the Landlord’s application dated 2nd November 2023. vii.List of witnesses, the statements thereof and the list of documents and documents thereof dated 6/8/2024, andviii.Submissions dated 8/11/2024.

11. On his part, the landlord filed the pleadings, documents and other filings as follows:-a.The reference and application both dated 2/11/2023. b.The Replying Affidavit sworn on the 26/10/2023. c.Submissions dated 9/2/2024. d.Affidavit sworn on the 21/8/2024 ande.The notice of motion application dated 11/11/2024.

12. Having perused and evaluated all the pleadings, documents, oral evidence and submissions by the parties, it is our view that the issues that emerge for determination herein are the same as identified in our Ruling dated 17/6/2024.

13. The 1st issue for such determination is whether there is a valid notice for the termination of the landlord and Tenant relationship herein. From the perusal of the record, the 1st notice of termination is dated 22/3/2022. It is an ordinary letter by M/S Okeyo Ochiel & Company Advocates. The letter indicated that the grounds for termination were that the landlord intended to carry out renovations on the premises and that the Tenant was in rent arrears at Kshs.25,000/-. The said notice was for 30 days to run from the 22/3/2022 and take effect on the 22/4/2022.

14. The other termination notice is dated 20/9/2023. It is by a letter issued by M/S Ashioya & Co. Advocates. The letter claimed the termination notice was founded on non payment of rent which was in arrears at Kshs.105,000/-. The letter also gave the Tenant 5 days to vacate the premises.

15. A perusal of the two (2) notices show non compliance with the act.Section 4(2) thereof provides that:-“A Landlord who wishes to terminate a controlled tenancy, or 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”.

16. The prescribed form is provided for under Regulation 4(1) of the Regulations to the Act which states thus:-“A notice under Section 4(2) of the Act by a Landlord shall be in Form A in the schedule to these Regulations”. From the above it is apparent that there was breach by the landlord of the Act and the Regulations in issuing the purported termination notices dated 22/3/2022 and 20/9/2023.

17. Indeed the purported notices were also not compliant with Section 4(4) of the Act. The same provides that:-“No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party, as shall be specified therein”.In the present case, the Landlord’s notice dated 22/3/2022 gave the Tenant a 30 days timeline whereas the notice dated 20/9/2023 allowed the Tenant only 5 days to vacate. Those notices were therefore in conflict with the law and of no consequence. Having said that, we need not go to merits of the grounds of the purported termination. We shall however later in this judgement address the question of the alleged rent arrears.

18. In dismissing the Termination notices herein, we find reliance in the case of Manaver N. Alibhai T/a Diani Boutique – vs- South coast Fitness & Sports Centre Ltd Civil Appeal No. 203 of 1994 where the court held that:-“The Act lays down clearly and in detail, the procedure for termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the Tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months form the date of receipt by the Tenant. The notice must also specify the ground upon which termination is sought. The prescribed notice in form A also requires the landlord to ask the Tenant to notify him in writing whether or not the Tenant agrees to comply with the notice”.

19. The import of this finding is that both the reference and notice of motion application dated 2nd November 2023 by the landlord in BPRT case No. E171/2023 are dismissed.

20. On whether the Tenant is in rent arrears and how much if at all, we first observe that the landlord has rendered conflicting figures in his pleadings and the same creates doubts of any rent arrears owed to him by the Tenant. At the 1st instant, the landlord claims the monthly rent, payable by the Tenant to be Kshs.15,000/- but in other instances he agrees with the Tenant that the same was actually Kshs.8,000/- per month.

21. When he filed BPRT case No. E171/2023 he claimed the rent arrears to have been Kshs.126,000/- after payment of Kshs.40,000/- and the offset of Kshs.26,000/- from a distress which was levied against the Tenant’s property. The Auctioneer who purportedly effected the distress however denounced both the counsel for the Landlord and the 2nd Respondent m/S Clifton Wafula who was alleged to be an agent of MS Munex Auctioneers.

22. The Respondents adamantly defied the summons of this court issued on the 16/2/2024, 27/2/2024 and 13/6/2024 to explain the alleged distress. The two also failed to appear in court to explain why they could not comply with the orders of this court and restore the Tenant’s goods which had irregularly been taken away from him.

23. The Landlord had in filing this suit being No.E171 of 2023 and also in response to suit no. E156/23 by the Tenant claimed different figures as the amount owed in rent arrears as follows:-i.By the letter dated 20/9/2023 and marked OPV2 he claimed Kshs.105,000/-in rent arrears at Kshs.15,000/- per month.ii.By the impugned instructions to m/s Munex Auctioneers by the letter dated 22/2/2023 (RKN-1) the rent arrears claimed was Kshs.170,000/-.iii.In his replying Affidavit dated 26/10/2023, the rent arrears claimed was Kshs.234,000/-.iv.By the letter dated 4/3/2024 drawn by M/S Ashioya Advocates, the rent arrears were claimed at Kshs.299,000/-.v.The Landlord in his Affdiavit dated 21/8/2024 claimed the rent arrears to have been Kshs.144,000/-.vi.That on the 22/8/2024 only a day after the affidavit in No. (V) above, the Landlord claimed rent arrears at Kshs.468,000/-.vii.From the evidence on record, it is plain that the landlord has no verifiable rental accounts. The reason for this is that he did not maintain a rent book as non was shown to the court and is therefore in breach of Section 3(3) and (5) of the Act.Section 3(3) provides that:-“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”.

24. The Landlord did also not offer any viva voce evidence in court on the alleged rent arrears so that the same could be tested by cross-examination. There was therefore no attempt by the landlord to proof a case of any amount of rent arrears by the Tenant.

25. Section 107 and 109 of the Evidence Act provides as follows:-107. “whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.

26. Further Section 109 thereof provides that:-“The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person”.

27. In this case the Landlord never rendered any support to his claim for rent arrears or in opposition to the Tenant’s claim. His claim for rent arrears was not proved and the same must fail. In the case of Robert Ngande Kathathi – vs- Francis Kivuva Kitonde (2020) eKLR the court at paragraph 9 thereof held as follows:-“That averments in pleadings are not evidence was appreciated in Francis Kivuva Kitonde (2020) eKLR where the court at paragraph 9 thereof held as follows:-“The averments in pleadings are not evidence was appreciated in Francis Otile – vs- Uganda Motors Kampala HCC No. 210 1989 where it was held that the court cannot be guided by pleadings since pleadings are not evidence nor can they be substitute therefore. Before that, then the East African Court of Appeal held in Mohamed & Another – vs- Haidara (1972) E.A 166 that the contents of a plaint are only allegations, not evidence. According to Edward Munga suing through Stanley Munga – vs- Nathaniel D. Schulter Civil Appeal No. 23 of 1997, where a defendant does not adduce evidence Plaintiff’s evidence is to be believed as allegations by the defence is not evidence. In CMCC Aviation Ltd – vs- Cruisair Ltd (No. 1) (1978) KLR Madam J. held that:-“Pleadings contain averments of parties concerned. Until they are proved or disproved, or there is an admission of them or any of them by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence. Evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation. Until their truth has been established or otherwise, they remain un-proven. Averments in no way satisfy, for example, the definition of “evidence” as anything that makes clear or obvious ground for knowledge, indication or testimony, that which makes truth evident or renders evident to the mind that it is the Truth”.

28. On whether the distress for rent by the landlord was lawful, we would answer the same in the negative. There is no evidence available to show that the Tenant was in any rent arrears at the time the distress was levied. In any event, M/S Oliver Simiyu the director of Munex auctioneers denied on oath having levied the distress for rent. Indeed there is no evidence of an inventory of the goods carted away by the landlord, the advert for sale, the sale and an account for the proceeds thereof. The Respondents also defied summons to appear in court and explain the purported levy of distress for rent arrears. In the circumstances the conduct of the Respondents was plainly in breach of the law.

29. The forth issue for determination in this Judgement is whether the Tenant should have the goods attached from him restored or be compensated for the same. From the record, it is apparent that the items taken away from the Tenant are not available for restoration to him. This may be the reason why the Respondents defied the summons to appear before this court to explain the attachment and the status of the attached goods.

30. From the evidence of the Tenant and his witness Mr. Dennis Okaduku Ongera, two lorryloads of goods were attached from the Tenants premises. The same included 3 pool tables and only two (2) were returned to the Tenant, one of those pool tables has remained at large. The Tenant put the cost on the pool table at Kshs.105,000/-. This evidence was never in any way rebutted by the Respondents. The total loss thereof would be Kshs.105,000/- and we award the same.

31. The Tenant had noted and catalogued the same in his inventory list marked UPV9. The Tenant had also reported this loss of pool tables to the Busia Police Station. We however note that from evidence on record, only 3 pool tables were taken away, but the inventory aforesaid reads 4 pool tables. In our determination herein we shall consider that only three pool tables were taken away as that is supported by evidence on record and was not contradicted by the Respondents.

32. We do appreciate that this loss was pleaded in the reference and was further proved by the evidence of the Tenant and that of TW2 Mr. Dennis Okaduku Ongara and we would therefore award the Tenant Kshs.105,000/- for the loss of one (1) pool table as a result of the illegal actions of the landlord.

33. The landlord further claims compensation for loss of other items as listed in annexture OPV9. We however note that most of the items listed in the inventory are not contained in the original filing in court and in the initial report to the police. But the uncontroverted evidence by the Tenant and Tw2 is that two lorryloads of goods were carted away from the Tenant’s shop. Indeed the Landlord admitted taking away some of the goods disposing off the same at Kshs.26,000/-.

34. This coupled with the fact that the whole process of attachment was illegal entitles the Tenant to nominal damages. The actions of the Respondents were in clear breach of the law and were not warranted.In this, we put reliance on the case of Joseph Kahunga M’mwirabua – vs- Warda Said Abud Msalam & Another (2021) eKLR where the court in similar circumstances held that:-“In this case, the plaintiff has proved, and the court has found that the attempt to evict the plaintiff from the demised premises was unlawful. No doubt, the plaintiff is entitled to general damages for the illegal action undertaken by the Defendants. However, the sum of Kshs.10,000,000/- asked by the plaintiff is in our view on the higher side. In any case, the plaintiff could not have suffered much damage having returned into the premises in less than 14 days. The damage or loss suffered in my view was very minimal. Having taken into consideration the circumstances of this case, the court awards the plaintiff a nominal figure for general damages in the sum of 500,000/- with interest at court rates from the date of judgement until payment in full”.

35. In the instant case, the Tenant lost all his stock in trade except the two pool tables aforesaid. He has sought for Kshs.2,732,300 as per the inventory marked “OPV9”. In our considered view, Kshs.300,000/- is adequate compensation for the illegal actions of the respondents and for the loss of his tools of trade.

36. On costs, we shall follow the conventional wisdom of Section 27 of the Civil Procedure Act and Section 12(1) (k) of Cap. 301 and award costs on both file Nos E156/2023 and E171 of 2023 to the Tenant.

37. In the final analysis, we make the following orders:-i.That the reference and application in BPRT case no. E171 of 2023 are dismissed.ii.The Reference and Application both dated 3rd October 2023 in BPRT case No. E156/23 are allowed in the following terms:-iii.The Tenant shall be allowed quiet possession of the demised premises.iv.The Tenant is awarded Kshs.105,000/- being special damages for loss of one (1) pool table.v.The Tenant is awarded Kshs.300,000/- for the illegal levy of distress and attachment of his stock in trade being nominal general damages.vi.Costs assessed at Kshs.30,000/-.vii.The Landlord shall keep a rent book as provided for by Section 3(3) and 3 (5) of the Act.viii.That the parties shall take a rental account of all the rents accrued since filing of this suit on the 2/10/2023 todate and the payments thereof by the Tenant within 30 days of the date hereof.Judgement dated, signed and Delivered virtually at Nairobi this 3rd day of April 2025. Those are the orders of the court.

RULING DATED SIGNED & DELIVERED VIRTUALLY AT NAIROBI THIS 3rdDAY OF April, 2025. HON. NDEGWA WAHOME, MBS HON. JOYCE MURIGIPANEL CHAIRPERSON MEMBERBUSINESS PREMISES RENT TRIBUNAL BPRTRuling delivered in the presence of Tenant in person and in the absence of the Landlord.HON. NDEGWA WAHOME, MBS HON. JOYCE MURIGIPANEL CHAIRPERSON MEMBERBUSINESS PREMISES RENT TRIBUNAL BPRT