Aura v Okwara [2022] KEBPRT 801 (KLR)

Aura v Okwara (Tribunal Case E082 of 2021) [2022] KEBPRT 801 (KLR) (Civ) (4 October 2022) (Judgment)

Neutral citation: [2022] KEBPRT 801 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E082 of 2021

Gakuhi Chege, Vice Chair

October 4, 2022

Between

Ayub Aura

Applicant

and

Valerie Okwara

Respondent

Judgment

1. The landlord herein served the tenant with a tenancy notice dated 13th October 2021 seeking termination of his tenancy on grounds of refusal to pay rent which had accumulated into arrears of Kshs 36,000. The notice was expressed to take effect from 1st January 2022.

2. The tenant filed a reference dated 3rd December 2021 in opposition to the said notice. On 3rd June 2022, the parties herein were directed to comply with provisions of order 11, Civil Procedure Rules by filing witnesses statements and documents in support of their respective cases.

3. The matter came up for hearing on 6th July 2022 of the main reference when counsel for the landlord applied for adjournment as he had not been served with documents filed by the tenant. The tenant undertook to serve the documents on the same date. Hearing was adjourned to 4th August 2022.

4. On 4th August 2022, both parties appeared without advocates and the tenant sought to rely on the documents filed in court. The landlord indicated that her lawyer would be available at 12. 30 pm. As the landlord had not complied with order 11 of the Civil Procedure Rules, the Tribunal directed the matter to proceed to judgment.

5. In his recorded statement, the tenant states that he runs a hotel business in the suit premises. By the date of tenancy notice, he was in arrears of Kshs 7500 being rent for 1 ½ months in terms of annexure 1. It is thus not true that he owed Kshs 36,000.

6. He states that he was in constant communication with the landlord via whatsapp as evidenced by filed ‘chats’. All rent payments were made through the tenant’s wife one Everlyne Indakwa’s Equity Bank Account. Although his business was affected by Covid -19 containment measures, he was able to pay rent and had no arrears as per annexure 2 and notification dated 8th October 2021 and notice of 13th October 2021.

7. The evidence of tenant and documents tendered have not been controverted by the landlord in any way. The CTS Portal was checked before writing this judgment and no documents had been uploaded by the landlord to prove his notice to terminate. In the circumstances, I am unable to hold that the tenant was indebted to the landlord in the sum of Kshs 36000 as alleged in the notice. In the premises the notice is not proved to the required standard. In the premises the notice is not proved to the required standard.

8. Section 9(1) of cap 301provides as follows:-“Upon a reference, a Tribunal may, after such inquiry as may be required by or under this Act or as it deems necessary:-(a)Approve the terms of the tenancy notice concerned, either in its entirety or subject to such amendment or alteration as the Tribunal thinks just having regard to all the circumstances of the case or:-(b)Order that the tenancy notice shall be no effect.(c)And in either case make such further or other order as it thinks appropriate”

9. Having investigated this matter on the basis of materials placed before me, I find and hold that the landlord has not proved the grounds set out in the notice to terminate tenancy dated 13th October 2022 and the same shall be of no effect. It is thus dismissed and the tenant’s reference upheld.

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

11. In conclusion, the final orders which commend to me are:-i. The tenant’s reference dated 3rd December 2021 is hereby allowed and the landlord’s notice to terminate tenancy dated 13th October 2021 is hereby declared to be of no effect.ii. The tenant’s cost of the reference are assessed at Kshs 10,000 to be offset against the rent account if not paid within the next Thirty (30) days hereof.iii. The tenant shall continue paying rent as and when the same falls due and payable and the landlord shall be entitled to serve another notice in the event of default for more than two (2) months notwithstanding provisions of section 9(3)(b) of Cap 301, Laws of Kenya.It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 4TH DAY OF OCTOBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence ofLandlord in personNo appearance for the Tenant