Ann Wambui v Julia Wangari Kamau [2021] KEBPRT 80 (KLR)

Full Case Text

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 67 OF 2021 (NAKURU)

AS CONSOLIDATED WITH NAKURU BPRT NO. 55 OF 2021

ANN WAMBUI.......................................................................APPLICANT

VERSUS

JULIA WANGARI KAMAU............................................RESPONDENT

RULING

1. By a reference dated 5th February 2021, the Tenant opposes the landlord’s notice to terminate tenancy dated 3rd February 2021 in which the Landlord cites the following grounds:-

“(i) Damage to property

(ii) I no longer need alcohol business in my premises

(iii) All other tenants want it closed”

2. The termination notice was expressed to take effect on 1st May 2021.

3. By a second Reference dated 3rd June 2021, the tenant moved this Tribunal vide BPRT No. 67 of 2021 complaining that the Landlord had disconnected electricity supply to the demised premises with an intention of compelling her to vacate therefrom. She had further closed the premises.

4. The tenant filed a motion of even date simultaneously with the reference seeking six(6) reliefs of prayers 2. 3. 4 and 7 were granted ex-parte leaving only prayers 5 and 6 outstanding.

5. Under prayer 5, the tenant seeks that the landlord be ordered to pay compensation for the days she operated her business without compensation. In prayer 6, the tenant seeks that the “landlord be ordered to remove the wall painting of alcohol advertising logo as before”.

6. The application is supported by the tenant’s affidavit of even date and the grounds on the face of the application.

7. The reference revolves around the Applicant’s tenancy in a business premises situate on L.R No. Nakuru Municipality Block 2/351 along Kanu Street, Nakuru Town. The agreed monthly rent is Kshs.7000/-.

8. In October 2021, the landlord is alleged to have disconnected electricity supply to the suit premises with an intention of compelling the tenant to vacate therefrom.

9. On 2nd June 2021, the landlord closed the suit premises with an intention of compelling the tenant to vacate and went ahead to remove the wall painting advertising alcohol with a milk logo although the applicant operates a liquor outlet.

10. As a result of electricity supply disconnection, the tenant was forced to use candles for lighting and could not use TV and refrigerator in the suit premises.

11. It is against the said background that the application was made before this Tribunal.

12. The application is opposed through a replying affidavit sworn by the respondent on 2nd July 2021 in which she accuses the tenant of abuse of process of court in view of pendency of Nakuru BPRT NO. 55 of 2021.

13. It is deposed that the tenant had an outstanding electricity bill of Kshs.15,000/- and there was fear that other tenants would be disconnected in the event of failure to settle the same.

14. According to the landlord, the tenant had greatly inconvenienced her and other tenants and she had no other source of income. She deposes that other tenants had complained against the tenant herein.

15. The landlord complains that the tenant has greatly destroyed or caused damage to the premises which was the basis of the termination notice marked ‘JKW-1’.

16. The landlord accuses the tenant of illegal connection of power which was reported to the Kenya Power & Lighting company and area chief leading to disconnection of power to the premises.

17. This illegal power connection according to the landlord endangered lives of other tenants and their property as well as neighbours.

18. The landlord denies closing the suit premises and removing her business advertisement logo. She however states that her relationship with the tenant had deteriorated beyond salvage.

19. The landlord fears that if the orders sought by the tenant are granted, the other tenants may move out thereby making her to lose her only source of income.

20. The tenant filed what is headed “Reply to replying affidavit” sworn on 23rd July 2021 wherein she controverts allegations made against her by the landlord.

21. The tenant contends that despite having been granted orders the landlord failed to reopen the premises and reconnect electricity supply thereto.

22. The application was directed to be disposed of by way of written submissions. Only the landlord’s counsel filed submissions.

23. The issues for determination are:-

(a) Whether the tenant is entitled to the orders sought.

(b) Who is liable to pay costs of the application?

24. I have already observed that only prayers 5 and 6 of the application remain for consideration. The tenant has not provided any evidence on the loss incurred during the period her premises remained without electricity supply. Secondly, the landlord alleges that the power supply was disconnected by the service provider on account of the alleged illegal connection. This is an issue that can only be determined at the full hearing.

25. Secondly, there are no photographs annexed to the tenant’s application to show that the advertising logo for her business was replaced with a ‘milk logo’. In my view this issue ought to be decided at the full hearing of the complaint.

26. Finally, the issue of costs shall abide the outcome of the main case.

27. In the premises, the orders that commend to me are:-

(a) The status quo obtaining at the suit premises shall be maintained pending the hearing and determination of the main reference.

(b) Prayers 5 and 6 shall be investigated and determined at the main hearing.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 2ND DAY OF DECEMBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Langat for the Landlord

Tenant present in person