[2025] KEBPRT 180 (KLR)

Waruiru v Waweru (Tribunal Case E1266 of 2024) [2025] KEBPRT 180 (KLR) (11 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 180 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1266 of 2024

CN Mugambi, Chair

March 11, 2025

Between

Lucy Njoki Waruiru

Applicant

and

Jane Gathoni Waweru

Respondent

Ruling

1. The Tenant’s Application dated 18. 11. 2024 seeks the following orders;-a.That the Respondent to reopen the suit premises and reinstate the Tenant therein failing which the Tenant is to be allowed to break the doors to the suit premises with the assistance of the OCS, Kiambu Police Station.b.That the Landlord be ordered to accept the rent failing which the Tenant be allowed to deposit the same in the Tribunal’s account.c.That the Respondent be compelled to release the Tenant’s tools of trade immediately and unconditionally.d.That the Landlord be restrained from leasing out the suit premises to any other Tenant and to further allow the Tenant unlimited access to the suit premises.e.That the Landlord be ordered to account for all the goods carted away and damaged in the premises and/or pay for losses of items estimated at Kshs. 3,000,000/= plus costs of renovation.

The Tenant’s depositions 2. The Tenant has sworn an affidavit in support of her Application wherein it has been deposed;a.That she is a Tenant of the Respondent at the Respondent’s business premises located at Kikinga House, Kiambu Town where she pays a monthly rent of Kshs. 57,000/=.b.That the Landlord declined the rent for November 2024. c.That on 18. 11. 2024, the Respondent took away the Tenant’s goods and locked the premises without a court order.d.That the Respondent ought to be ordered to pay the Tenant for loss of business and cost of renovations estimated at Kshs. 3,000,000/=.e.That the Respondent has not issued the Tenant with any termination notice or orders.

The Respondent’s depositions 3. The Replying affidavit sworn by the Respondent on 18. 12. 2024 may be summarized as follows;-a.That the head Tenant to the suit premises is Kikinga House Limited which is not a party to this suit.b.That there exists a sublease between the Respondent and the Tenant for a monthly rent of Kshs. 57,000/=.c.That the Tenant is in rent arrears of an amount over Kshs. 57,000/= and he continues to be in such arrears.d.That the Tenant was notified that renovations of the premises were to take place but she refused to move her tools.e.That the Tribunal should order that the Tenant vacates the suit premises with immediate effect.f.That the Tenant is a rent defaulter and the Respondent has the right to recover the rent arrears and evict the Tenant.

Analysis and determination 4. The only issue that arises in this Application is whether the Tenant is entitled to the orders sought in her Application.On 9. 12. 2024, the Tribunal ordered that an inspection of the premises be carried out and an inspection report filed. The inspection report filed was generally to the effect that the Tenant’s goods were all accounted for and were in good condition.

5. On 23. 12. 2024, the court ordered the Landlord to have reinstated the Tenant by 27. 12. 2024. The Tenant was to continue paying rent upon reinstatement.

6. The Respondent’s only claim is for the payment of Kshs. 57,000/= which she claimed to be rent arrears but I note from the record that on 23. 12. 2024, the Tenant stated that she did not have any rent arrears.As this statement was made in the presence of Counsel for the Respondent who did not dispute the same, I will take that to be the position.

7. The Respondent has not denied breaking into the Tenant’s business premises and locking the same on 18. 11. 2024. The orders to re-open the premises were made on 23. 12. 2024 which roughly translates to forty six days. The closure of the suit premises by the Landlord was illegal and especially considering that the Respondent had declined to accept the rent for November 2024. The closure of a business premises in a controlled tenancy without an order from the Tribunal terminating the tenancy amounts to an attempted illegal termination of the tenancy. A Landlord who takes the law into his own hands and illegally locks a business premises under a controlled tenancy is not entitled to rent for the duration of the illegal closure and consequently in this matter, the Landlord is not entitled to rent for the period that the premises remained illegally closed.

9. The Tenant has in her Application made a claim for the sum of Kshs. 3,000,000/= being the cost of damaged goods, lost business and renovations. Other than merely making the allegations in the Application and the affidavit, the Tenant has not provided any material support for this claim in her Application and I proceed to decline to grant the same.

10. I do not think in the circumstances the Respondent was entitled to lock the suit premises as this would have required the Landlord to properly terminate the tenancy under Section 4(2) of Cap 301 by issuing the relevant statutory notice under that Section. In view of the deposition by the Tenant that the Respondent declined to accept the rent for the month of November, 2024 the Respondent was not entitled to purport to levy distress for rent against the Tenant.

11. In the premises, I find that the Application by the Tenant is merited and allow the same in terms of prayers 2, 3, 4, 5, 6, 7 and 8.

12. prayer 9 is dismissed.

13. I further order that the Landlord is not entitled to any rent for the forty-six days that the suit premises remained illegally closed and the rent be calculated as such.

14. The Reference by the Tenant is allowed in terms of the orders issued above.

15. The Respondent will bear the costs of the Application and Reference.

16. This file is ordered closed.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 11TH DAY OF MARCH 2025HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Munene for the Respondent and in the absence of the Tenant