[2022] KEBPRT 190 (KLR)

Wairimu v Westfield Shopping Mall Ltd; Olive Joycare (Interested Party) (Tribunal Case E019 of 2021) [2022] KEBPRT 190 (KLR) (Civ) (27 May 2022) (Ruling)

Neutral citation: [2022] KEBPRT 190 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E019 of 2021

Gakuhi Chege, Vice Chair

May 27, 2022

Between

Sarah Wairimu

Tenant

and

Westfield Shopping Mall Ltd

Landlord

and

Olive Joycare

Interested Party

Ruling

1. By a motion dated 16th April 2021, the tenant moved this Tribunal seeking for an order that the Respondents do re-open the suit premises and allow her to move out with all her goods of trade without any interruption unconditionally and in default, she be granted liberty to gain access into the premises under breaking in orders by the OCS, Kilimani Police Station.

2. The application is supported by the affidavit of the tenant sworn on even date and the grounds on the face thereof.

3. It is the tenant’s case that she has been a tenant at the suit premises located in Arcade Discount building, shop no. 4 along Ngong Road where she operates a boutique business.

4. The agreed monthly rent is Kshs.24,000/- and the tenant deposes that she paid Kshs.120,000/- at the inception of the tenancy. She deposes that she had been dutifully paying rent without delay save for the month of November 2020 when she was involved in a road accident when the landlord locked the premises.

5. On 24th November 2020, the landlord is accused of having locked the premises without prior notice or court order denying the tenant her right to operate her business. She deposes that she wanted to vacate the premises as she was not making any profits from the business but the landlord declined to allow her to move out.

6. In a second application dated 27th April 2021, the tenant is seeking for a restraining order against the landlord from levying distress against her goods and breaking into the suit premises. The application is supported by her affidavit of even date and the grounds on the face thereof.

7. The application dated 16th April 2021 is opposed through the replying affidavit of Robert Nyamweya Onchonga sworn on 26th November 2021. The deponent is the Managing Director of the Landlord Company who deposes that the tenant owed rent arrears of Kshs.323,000/- as at the time of filing the application as per the statement of account marked ‘RN01’.

8. It is denied that there was closure of the suit premises by the landlord but it is admitted that the tenant was stopped from carting away goods before clearing rent arrears which she wanted to evade.

9. It is the contention of the Respondent/Landlord that the tenant has come to court with unclean hands to defeat justice and the application is as such vexatious, misconceived and an abuse of court process.

10. The tenant filed a supplementary affidavit sworn on 28th March 2022 wherein she denies being in rent arrears of Kshs.323,000/-. She deposes that she paid rent for the months of August, September and October 2020. She states that the statement of account filed by the landlord is inaccurate on the reduced rent and utilization of rent deposit which is excluded.

11. She attaches annexures ‘SW1’ as evidence of rent payment for the months of January 2020, February 2020, May 2020, April 2020, July 2020 and June 2020 in form of ‘RTGS’ and relies on her affidavit earlier sworn on 18th June 2021 to explain the rest of the payments.

12. According to annexure ‘SW1’, the tenant made the following payments via ‘RTGS’i.17/1/2020 - Kshs.30,000/-ii.5/3/2020 - Kshs.30,000/-iii.15/5/2020 - Kshs.30,000/-iv.9/7/2020 - Kshs.24,000/-v.24/8/2020 - Kshs.25,000/-vi.27/11/2020 - Kshs.30,000/-vii.30/4/2021 - Kshs.30,000/-

13. In her submissions, the tenant contends that it had been agreed with the landlord that she owed Kshs.30,000/-. Both agreed that she would vacate by the end of November 2021 upon payment of the said amount.

14. However, on 10th November 2020, the landlord is accused of breaking the tenant’s padlock and replacing it with another one denying the tenant access thereto.

15. The tenant submits that she came to this Tribunal on account of closure of the suit premises and that the landlord cannot deny closure as it was opposing the application for re-opening thereof. In the premises, the tenant submits that closure of the suit premises amounts to her constructive eviction contrary to section 4(2) of Cap. 301, Laws of Kenya.

16. The tenant relies on the case of Mohamed Samir Asgar – vs- Muktagauir Patel (2021) eKLR where closure of premises in similar circumstances was declared unlawful and to amount to constructive eviction of a tenant from a suit premises.

17. To buttress the need for a landlord to obtain orders of a competent court or tribunal before obtaining possession, the tenant relies on the case of Gusii Mwalimu Investment Co. Ltd & 2 others – vs- M/S Mwalimu Hotel Kisii Ltd (1996) eKLR where the court of appeal discussed the same with approval.

18. It is further submitted that the landlord failed to reopen the suit premises despite the Tribunal order. The landlord is also accused of changing goal posts by stating in one affidavit that the tenant was in rent arrears from August 2020 while contending in filed submissions that the tenant has never paid rent since April 2020 which amounts to approbation and reprobation pointing to the landlord’s dishonesty.

19. On its part, the landlord filed submissions to oppose the application. It is submitted that the tenant did not file her statement of account to prove that she had paid rent for the suit premises and that she intended to leave without paying rent.

20. It is the landlord’s submission that the tenant has not proved that the suit premises was closed or that she had paid rent before attempting to vacate. It therefore seeks that the application be dismissed.

21. I am required to consider whether to allow or refuse the application and thereafter determine who is liable to pay costs.

22. The issue before court is one of reconciliation of rent accounts and I only need to examine whether on the materials placed before court, the tenant owes the landlord any rent arrears. Contrary to the submissions by the landlord that the tenant did not file any statement of rent account, she annexed one as ‘SW1’ to the supplementary affidavit.

23. In a ruling delivered by this Tribunal on 30th September 2021, the sum of Kshs.323,000/- claimed by the landlord as arrears of rent by that time was to be subjected to reconciliation of accounts.

24. I have looked at the ruling and noted that the rent in respect of the suit premises was reduced from Kshs.30,000/- to Kshs.24,000/- for a period of only 3 months i.e May, June and July 2020 and it is therefore not correct for the tenant to submit that it was to remain that way until otherwise agreed upon. The reduction was on account of Covid-19 pandemic.

25. This Tribunal in the said ruling found that the tenant had paid rent in full for the months of April to July 2020 and requested the landlord to apply her rent deposit of Kshs.90,000/- towards rent for August, September and October 2020.

26. The tenant had agreed to repaint the premises going by the email correspondence exhibited before court but the landlord closed the premises around 27th November 2020 without a court order or other lawful justification in an attempt to block the tenant from leaving.

27. From annexure ‘RN01’ attached to the replying affidavit sworn on 26th November 2021, the landlord claims Kshs.503,000/- as at that date and Kshs.323,000/- as at May 2021. The annexure shows that the tenant owed Kshs.198,000/- as at 1st November 2020.

28. The only payments made by the tenant are those captured in paragraph 12 of this ruling between 17th January 2020 and 30th April 2021 which I have noted to have all been credited to her rent account save for the last payment which falls outside the relevant period.

29. This Tribunal directed in its earlier ruling that the only rent payable is up to 30th November 2020 and the only payments made after that date amount to Kshs.55,000/- according to annexure ‘RNO’. If this amount is reduced from the sum of Kshs.198,000/- indicated therein as the balance of rent arrears as at 1st November 2020, the figure reduces to Kshs.143,000/-. Upon application of the sum of Kshs.90,000/- paid by the tenant as rent security deposit, the balance comes to Kshs.53,000/- which the tenant ought to pay to the landlord.

30. The tenant is in addition liable to restore the suit premises to the same condition it was at the time of taking possession and I shall direct as much.

31. In regard to the issue of costs, I shall exercise my discretion under section 12(1) (k) to order each party to bear own costs in view of the fact that they partially succeeded in their respective claims.

32. In conclusion therefore, the final orders that commend to me are:-i.The tenant is allowed to vacate the demised premises being shop no. 4, Arcade Discount Building, Ngong Road upon payment of Kshs.53,000/- in rent arrears and upon restoring the premises to the same condition it was at the time of taking possession.ii.The OCS Kilimani Police Station shall ensure that there shall be peace and tranquility during the process of exit and restoration of the premises as ordered.iii.The said payment and restoration shall be made within Thirty (30) days hereof and parties shall have liberty to apply should there be default in compliance.iv.Each party shall bear own costs of the suit.

It is so ordered.RULING DATED, SIGNED AND VIRTUALLY DELIVERED THIS 27TH DAY OF MAY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Mukonyi holding brief for Ochako for the LandlordNo appearance for the Tenant