Abdalla Mutembei Gisaga v Patricia Kathure Kiruja [2021] KEBPRT 214 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 47 OF 2020(MERU) (CONSOLIDATED WITH 21/2021)

ABDALLA MUTEMBEI GISAGA..............................LANDLORD

VERSUS

PATRICIA KATHURE KIRUJA.......................................TENANT

RULING.

1. The application before me is the Landlord’s notice of motion filed under certificate of urgency dated 4th August, 2020 . The application sought the following orders inter alia:

a. That this application be certified as urgent and the service of the same be dispensed within the first instance for reasons in the certificate.

b. That I am the Landlord of the Tenant/ Respondent in Plot No. 11/Ndagani Chuka

c. That the Honourable Court be pleased to make orders of distress against the Respondent/Tenant for non-payment of rent arrears of Kshs. 249, 000/=

d. That the O.C.S Chuka Police Station be ordered to enforce the orders and provide security

e. That costs be in the cause.

2. The application was placed before the Honourable Chairman on 17th December, 2020 whereby he directed that the same be served upon the respondent and that a hearing date would be fixed on the date the Tribunal would visit Meru.

3. The tenant subsequently filed a separate application and reference sometimes in March 2021 alleging that the Landlord had disconnected electricity and water from the demised premises. The application sought for orders to have the two essential amenities reconnected. The application was certified urgent on 19th March 2021 and the Tribunal issued interim orders.

4. This ruling shall determine the two pending applications. The Landlord’s application seeks for orders of levying of distress while the tenant’s application seeks for orders of injunction. The Landlord filed a detailed and rather lengthy replying affidavit in opposition to the aforesaid tenant’s application. The parties were directed to file submissions and statements of account. Only the Landlord has complied.

5. I have considered the applications, the responses thereto and the submissions filed and would proceed as follows:

6. The parties herein have engaged in a rather emotive litigation history. The differences exhibited are quite deep. The only point they seem to agree on is that there exists a tenancy relationship between them. The manner in which the tenancy relationship was created is in sharp dispute. The rent payable is equally disputed with each party giving conflicting figures. The tenant has however annexed a tenancy agreement.

7. Having set the background as stated above, the issues for determination will be summarized as follows:

a. Whether the tenant is in rent arrears hence the Landlord is justified to levy distress?

b. Whether the tenant is entitled to the grant of orders of injunction sought?

ON 1ST ISSUE:

8. The power/jurisdiction to permit the levy of distress for rent is donated to the Tribunal under section 12(1) (h) of Cap 301.

9. Under section 12(4), the Tribunal may investigate any complaint relating to a controlled tenancy and may make such orders thereon as it deems fit. That is the provision under which the Applicant’s/Landlord’s application is expressed to be brought under.

10. The right of distress is provided for under section 3 of Cap 293 which provides;

3(1) “subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrears and due upon a grant, lease, demise or contract shall have the same remedy by distress for the recovery of that rent or seat service as is given by the Common Law of England on a similar case.”

11. In order to grant the orders sought by the Landlord the Landlord needs to satisfy this Tribunal that there exist arrears of rent upon the lease between the Landlord and the Tenant.

12. The only prequalification for levying distress is therefore “having any rent or rent service in arrears and due.” Does the Tenant in this suit owe the Landlord any rent arrears.

13. The Tenants at paragraph 4 of her supporting affidavit has averred that during their tenancy, she has faithfully and diligently paid all the rent due to the Landlord. The Tenant has not annexed to the said affidavit any evidence of payment of the said rent apart from cheque purportedly drawn in favour of the Landlord. It has not been suggested anywhere in her affidavit that she made any payments to the Landlord who failed to issue payment receipts. One would in the serious circumstances of this case have expected that receipts and other evidence of payments would have been adduced.

14. The Tenant is under a duty to substantiate the allegation that she has faithfully paid rent to the Landlord and discharge this duty to the standard as imposed under Section 108 of the Evidence Act.

15. I am not convinced that issuance of a cheque is a conclusive proof of payment. There are several instances where cheques are dishonored. The tenant ought to have annexed a bank statement indicating that indeed funds were transferred to the Landlord.

16. The next question for determination is what is the amount of rent due. The rent payable as earlier indicated is in dispute. The tenant has annexed a tenancy agreement indicating that the rent payable is Kshs. 16,000. The Landlord has vehemently denied ever signing the tenancy agreement and that the same is a product of fraud. The tenancy agreement was forged. Section 12(2) ousts the jurisdiction of the Tribunal to deal with criminal matters. The Landlord therefore ought to have pursued appropriate remedies with regards to the alleged forgery. I have perused the agreement. It is drawn by a firm of advocates. The Landlord has not made any attempts to have the advocates confirm its authenticity. In the absence of any other evidence, the agreement is binding upon the parties. The monthly rent payable is therefore Kshs. 16,000 and not Kshs. 27,000. The tenant is therefore in arrears to the tune of Kshs. 348,000 as at 1st October , 2021.

17. The other claims and counterclaims incurred by the parties are largely unsubstantiated and were only meant to convolute the applications. This Tribunal shall not be dragged into the mud of sideshows. The invite is rejected.

18. The tenant has an obligation to meet the cost of the utilities such as water and electricity. The tenant shall therefore pay all the outstanding bills as shall be ascertained by the service providers.

19. The second issue was to determine whether the tenant is entitled to the injunctive orders sought. The grant of orders of injunction is done in accordance to the maxims of equity since the orders are equitable in nature. The tenant has not done equity. This Tribunal shall therefore not issue her with the orders sought. Her application is therefore ripe for dismissal.

20. The upshot is that the Landlords application dated 4th August, 2020 is allowed.

Disposition

1. The tenant shall pay the Landlord the rent arrears of Kshs. 348,000 and the outstanding utility bills within 14 days.

2. In default the Landlord shall be at liberty to levy distress for rent.

3. The Landlord shall be awarded the costs of the two applications assessed at Khs. 70,000.

It is so ordered.

RULING DATE, SIGNED & DELIVERED THIS 13TH DAY OF OCTOBER 2021

HON. P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Abdalla Landlord – present

Ngesa for the Tenant - present