Ali v Mushila [2022] KEBPRT 770 (KLR)

Ali v Mushila (Tribunal Case E049 of 2022) [2022] KEBPRT 770 (KLR) (30 September 2022) (Judgment)

Neutral citation: [2022] KEBPRT 770 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E049 of 2022

Gakuhi Chege, Vice Chair

September 30, 2022

Between

Salim Imran Ali

Landlord

and

Cyrus Mushila

Tenant

Judgment

1. The landlord herein moved this Tribunal through a reference dated 24th May 2022 pursuant to section 12(4) of Cap. 301, in which he complains that the tenant had locked the suit premises for the last three (3) years without operating any business and had rent arrears of Kshs.105,000/-. He therefore prayed for payment of the rent arrears and access to the premises for his own use.

2. The Landlord filed his written witness statement to which he annexed Mpesa statements for his account no. 0720829XXXfor the period between 1st January 2019 to 7th June 2022 together with a summary of all rent payments made by the tenant in respect of rent. He also exhibited photographs of the closed shop.

3. The landlord also filed a brief statement by Alex Jivanoto confirming that the door to the suit premises was always closed and that he had not heard from the tenant nor seen him.

4. There is a second statement by Josephine Atieno Odhiambo confirming that for the last two (2) years, she had not seen the tenant herein who is her neighbor neither had she heard from him nor engaged with him and the suit premises was always closed.

5. On his part, the tenant filed an affidavit sworn on 2nd August 2022 confirming that it is true that the premises is locked because it was in a deplorable condition and his effort to have the landlord renovate it was in vain.

6. According to the tenant, there was a massive leakage in the suit premises and that rain water was running through it leading to damage of his goods which had been occasioning him irreparable loss and damage. He annexed pictures/photographs to prove the same.

7. He stated that he had been making some payment in cash but the landlord never issued receipts. He claims to have sent the landlord Kshs.820,000/- which he was yet to refund despite numerous demands as evidenced by annexure ‘CM3’ being demand letters dated 28th February 2022, 20th December 2021 and 2nd May 2022.

8. When the matter came up for hearing on 2nd June 2022, the landlord stated that the tenant owed him Kshs.120,000/- as at that date. The last rent payment was in March 2022 in the sum of Kshs.30,000/- and that the tenant had closed the premises for 3 years. He had not been running any business in the premises.

9. On his part, the tenant stated that he had been paying rent through Mpesa and sought for one month to file his evidence of rent payment. He reiterated that the suit premises were not usable.

10. Both parties were directed to file statements of rent account within 21 days together with documents in support of their respective cases. The matter was to be mentioned on 6th July 2022.

11. When the matter was mentioned on 6th July 2022, the parties indicated that they had filed their documents and the tenant was directed to clear rent for the month of June, July and August 2022 before 4th August 2022 when the matter was due for mention.

12. On 4th August 2022, the matter was fixed for judgment on the basis of documents already on record.

13. I am now required to determine the following issues:-(a)Whether the tenant is in rent arrears and if so how much is owing?(b)Whether the landlord is entitled to vacant possession of the premises.(c)Who is liable to pay costs of the reference?

14. Section 12(4) of Cap. 301, Laws of Kenya provides as follows:-“In addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant and may make such order thereon as it deems fit”.

15. At the time of filing the reference, the landlord stated that the tenant owed Kshs.105,000/-. The landlord prays that the tenant be ordered to pay the said arrears and move out of the premises. The landlord has presented Mpesa statements and a summary of all rent payments made by the tenant from 1st January 2019 to 7th June 2022.

16. According to the landlord, the rent per month is Kshs.15,000/- and from September 2019 when he took over control of the premises upto June 2022, the tenant had only paid Kshs.373,033/- which is a period of 34 months out of a total expected sum of Kshs.510,000/- to leave the balance of Kshs.136,967/-.

17. If one was to add the rent for the month of July, August and September 2022 amounting to Kshs.45,000/-, the rent arrears will stand at Kshs.181,967/-.

18. The tenant has not disputed the analysis and records provided by the landlord on rent payments through Mpesa. He has neither provided his own records to prove that he paid more than what was presented by the landlord. I am therefore ready to go by the figures and records presented by the landlord and find the tenant liable to pay Kshs.181,967/- in rent arrears as at 30th September 2022.

19. In regard to whether the tenant ought to give vacant possession of the suit premises, he has admitted that he has not conducted any business therein for the last three years as the premises are in a deplorable condition and his effort to have the landlord renovate it was in vain.

20. According to the tenant, the premises had massive leakage and rain water was running through it leading to damage of his goods which was occasioning him irreparable loss and damage. He exhibited photographs marked ‘CM1’ showing the state of the building.

21. The tenant has not opposed the landlords prayer for vacant possession. It is not clear to me why the tenant who was has not been undertaking any business in the premises has continued to cling on it for the last three (3) years. He did not even complain to this Tribunal about the state of the premises prior to the filing of the instant reference by the landlord. I therefore find that it is not legally tenable to keep the tenant in the demised premises to the chagrin of the landlord as it was not beneficial either to the tenant or to the landlord.

22. Under section 12 (1) (e) of Cap.301, this Tribunal has power to make orders upon such terms and conditions as it thinks fit for the recovery of possession and for payment of arrears of rent, which orders may be applicable to any person being in material time in occupation of the premises comprised in a controlled tenancy.

23. As regards costs, the same are in the discretion of this Tribunal under section 12(1) (k) of Cap. 301, Laws of Kenya but always follow the event unless for good reasons otherwise ordered by the Tribunal. I have no reasons to deny costs to the landlord.

24. In conclusion, the following orders commend to me in this matter:-i.The tenant is in rent arrears of Kshs.181,967/- as at 30th September 2022 and judgment for the same is entered against him in favour of the landlord.ii.The landlord is entitled to vacant possession of the suit premises and the tenant is directed to forthwith vacate therefrom and in default be evicted therefrom by a licensed Auctioneer who shall be given security by the OCS of the Police Station within whose jurisdiction the premises are situate.iii.The Auctioneer shall be at liberty to break into the premises during the eviction exercise in the presence of OCS or his representative should the tenant decline to open or voluntarily give vacant possession.iv.The landlord is awarded costs of Kshs.20,000/- against the tenant as well as costs of eviction should the tenant fail to voluntarily vacate from the suit premises.It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 30TH DAY OF SEPTEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PRESEMISES RENT TRIBUNALIn the presence of:Tenant present in personLandlord present in person