[2025] KEBPRT 261 (KLR)

Wagic Company Limited v Ventures Point Hairdressing School (Tribunal Case E1135 of 2024) [2025] KEBPRT 261 (KLR) (11 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 261 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1135 of 2024

P Kitur, Member

April 11, 2025

Between

Wagic Company Limited

Landlord

and

Ventures Point Hairdressing School

Tenant

Ruling

A. Parties 1. The landlord is the registered owner of land known as title Number Kangemi/Dagoretti/S.396 Kangemi, Nairobi County in which the Tenant operates a business by the name of Ventures Point Hairdressing School (hereinafter referred to as ‘the suit premises’).

2. The firm of Kibatia & Company Advocates LLP represents the Landlord.

3. The Tenant operates the business within the suit premises.

4. The firm of Nyarega & Company Advocates represents the Tenant.

B. The Dispute Background 5. The Landlord approached this Honourable Tribunal on 18th October 2024 by way of a Complaint. This was prompted by a dispute involving substantial rent arrears allegedly owed by the Tenant, amounting to Kshs. 696,000/=. The Landlord sought orders compelling the Tenant to settle the arrears and sought permission to levy distress and that the Tenant vacates the premises forthwith.

6. In response, the Tenant filed a Replying Affidavit dated 13th November 2024, wherein she contended that a revised payment arrangement had been reached with the Landlord. Pursuant to the said agreement, the Tenant was to remit monthly payments of Kshs. 30,000. The Tenant further challenged the legitimacy of the sum claimed in the Reference, deeming it unjustifiable and unsupported by sufficient documentary evidence.

7. Subsequently, on 21st November 2024, the Landlord filed a formal Application reiterating the reliefs sought in the Reference. The Tenant, in turn, filed another Replying Affidavit on 6th January 2025, which reiterated the position taken in the earlier affidavit.

8. The Landlord later filed a Further Affidavit on 17th January 2025, in which he annexed documents intended to demonstrate the Tenant's rent payments and a letter authored by the Tenant acknowledging arrears amounting to Kshs. 574,000/= as at December 2021.

9. The Tribunal thereafter issued directions for parties to file written submissions, which were duly complied with. Consequently, this matter is now before the Tribunal for a ruling on the Landlord’s Application dated 21st November 2024.

C. List Of Issues For Determination 10. Upon a careful consideration of the Application dated 21st November 2024, together with the affidavits and written submissions filed by the parties, the issue that arises for determination is:1. Whether the Application dated 21st November 2024 is merited.

D. Analysis And Findings 11. At the outset, I note that there is no dispute between the parties regarding the existence of a landlord–tenant relationship. Both parties are in agreement that the tenancy relationship was created orally. It is, therefore, established that the parties are bound by the rights and obligations accruing under such an oral tenancy.

12. The core of the dispute lies in the alleged rent arrears. The Landlord avers that the Tenant is in arrears amounting to Kshs. 696,000, while the Tenant disputes this amount, contending that the arrears are neither evidenced by documentary proof nor accompanied by a clear breakdown of how the figure is arrived at.

13. In the Application dated 21st November 2024, the Landlord prays for orders compelling the Tenant to settle the claimed arrears of Kshs. 696,000, in default of which the Landlord be allowed to levy distress for rent and further, that the Tenant be ordered to immediately vacate the suit premises.

14. I am guided in my analysis by the provisions of Sections 107 and 108 of the Evidence Act, Cap 80 of the Laws of Kenya, which provide as follows:Section 107. Burden of proof(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.Section 108. Incidence of burdenThe burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

15. The burden of proof is therefore firmly placed upon the party who asserts a fact. In this case, the Landlord must prove the existence and quantum of the alleged rent arrears.

16. I draw further guidance from the often-quoted dictum of Denning J. in Miller –vs– Minister of Pensions [1947] 2 ALL ER 372, where the learned judge aptly stated:“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case... if the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged... proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough.”

17. It follows, therefore, that in a civil dispute such as this one, the party who bears the burden must tip the scales of justice, however slightly, in their favour. Where the evidence presented by both parties is evenly balanced, the party with the burden of proof must fail.

18. In the present case, the Landlord has sworn an affidavit dated 21st November 2024, to which is annexed a rent account statement demonstrating the rent arrears. The account shows that the Tenant is indebted.

19. In support thereof, the Landlord also relies on a letter dated 18th January 2022, wherein the Tenant unequivocally admitted owing Kshs. 574,000 as at December 2021 and further undertook to clear the arrears within 60 days.

20. In light of the foregoing, I find that the Landlord has not only asserted the existence of rent arrears but also substantiated the claim through documentary evidence. The admission letter from the Tenant is a crucial piece of evidence that places the burden on her to explain any discrepancies or alleged overpayments thereafter.

21. I find further guidance in the persuasive authority of Decor Pebbles Ltd v Ontuulii Investments Ltd & 2 Others [2023] KLR, where the Court held that:“A party claiming rent arrears must provide documentary proof such as receipts and rent statements. Where a tenant admits owing rent but disputes the amount, the burden of proof shifts to them to demonstrate the alleged overpayment or any counterclaims. In the absence of credible evidence from the tenant, the landlord’s rent statement is presumed accurate and enforceable.”

22. Despite disputing the amount owed, the Tenant has failed to furnish any evidence to support her claims. She has not produced a single rent receipt, payment voucher, bank slip, or any documentation to dislodge the Landlord’s assertions. It is not enough to merely allege overpayment; such claims must be supported by tangible evidence.

23. Upon a holistic consideration of the pleadings, the affidavits, annexures, and submissions placed before this Tribunal, I am satisfied that the Landlord has discharged both the legal and evidential burden placed upon him. On a balance of probabilities, he has proven that the Tenant is indeed in arrears of rent and is therefore entitled to the first order sought.

24. The Tenant cannot purport to rely on the protective provisions of the law while blatantly defaulting on her primary obligation — that is, the payment of rent. It would be unconscionable for the Tribunal to allow a tenant to unjustifiably remain in possession of the suit premises while using legal technicalities to frustrate the landlord’s right to earn a livelihood from his property.

25. Justice cannot be attained through manipulation or abuse of procedural safeguards. The law is not a shield for the dishonest. Where a tenant enjoys possession of rented premises, they must equally bear the financial responsibilities that come with such enjoyment.

26. That said, I note that the Landlord, in the third limb of his prayers, effectively seeks the immediate eviction of the Tenant from the suit premises. This is a remedy that is not available in the manner it is sought.

27. Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 provides that:“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 tenancy, shall give notice in that behalf to the tenant in the prescribed form.”

28. The Court in Manaver N. Alibhai T/A Diani Boutique vs. South Coast Fitness & Sports Centre Limited, Civil Appeal No. 203 of 1994, stated that: -“The Act lays down clearly and in detail, the procedure for the 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 from the date of receipt thereof 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.”

29. It follows, therefore, that the Tribunal cannot grant an eviction order based on the current Application as the mandatory procedure for termination of a controlled tenancy has not been followed. The Tribunal, being a creature of statute, must adhere to the law and cannot circumvent procedural safeguards in pursuit of substantive justice.

30. In conclusion, while the Landlord is well within his rights to pursue recovery of rent arrears and is entitled to levy distress for the same, the prayer for immediate eviction is premature and procedurally defective. Justice must be attained through lawful means, and not through shortcuts or "backdoor" avenues. This Tribunal, as an institution of justice, cannot condone or sanction the use of illegal methods to achieve otherwise lawful ends.

E. Orders 31. In light of the forgoing this tribunal makes the following orders; -a.The upshot is that the Landlord’s Application dated 21st November 2024 partially succeeds in the following terms;b.The tenant shall clear the arrears of Kshs. Ksh.696,000/= as at 18th October 2024 in addition to any rent and incidental costs accrued to date no later than 31st May 2025. c.In default, the Landlord shall be at liberty to proceed to levy for distress of the rent.d.The Landlord shall be at liberty to issue any notice it deems fit after 31st May 2025. e.This Ruling settles the Complaint dated 18th October 2024. f.Costs are awarded to the Landlord assessed at Kshs. 20,000/=.g.File is marked as closed.

HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR THIS 11TH DAY OF APRIL 2025in the presence of Tambo for the Landlord and Oyando for the Tenant.