Awed v Musembi [2024] KEBPRT 187 (KLR)

Awed v Musembi (Tribunal Case E171 of 2023) [2024] KEBPRT 187 (KLR) (Commercial and Tax) (6 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 187 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Commercial and Tax

Tribunal Case E171 of 2023

P Kitur, Member

February 6, 2024

Between

Abdillah Mohamed haji Awed

Landlord

and

Reuben Musembi

Tenant

Ruling

A. Parties And Their Representatives 1. The Landlord/ Applicant (hereinafter referred to as “the Landlord”) is the Landlord in the suit premises located in Chaani within Mombasa County (hereinafter referred to as “the premises”) and has let out the premises to the Tenant.

2. The Landlord is represented by the firm of Garane & Somane Advocates.

3. The Tenant occupies the premises.

4. The Tenant appears in person.

B. Dispute Background 5. The Landlord claims that the Tenant has failed to meet his obligations in payment of rent as and when it fell due and disappeared with arrears outstanding at Kshs. 290,000/= as at 10th July 2023.

6. According to the Tenant, he has dutifully paid rent over the course of her Tenancy up until this year, 2023, when she encountered financial constraints which she communicated to the Landlord.

C. The Landlord’s Case 7. The Landlord filed a Complaint dated 10th July 2023 and an application of even date wherein he stated that the Tenant has failed to meet his obligations in payment of rent as and when it fell due with arrears outstanding at Kshs. 290,000/=.

8. The Landlord thus seeks to recover the outstanding arrears, terminate the Tenancy and to regain vacant possession of the premises.

D. The Tenant’s Case 9. On 7th August 2023, the Tenant swore a Replying Affidavit stating that he has been in occupation of the premises since 2004 and has dutifully paid rent over the course of her Tenancy up until the year 2020, when he encountered financial constraints due to Corona Virus which he communicated to the Landlord.

10. The Landlord thereafter filed a Further Affidavit sworn on 14th August 2023 where he acknowledged the admission by the Tenant of having rent arrears from the year 2020.

11. The Landlord additionally, in support of his contention that the Tenant acknowledged indebtedness, tendered evidence in the form of an ‘Agreement for Settlement of Rent Arrears’ dated 7th September 2020 entered into between the Landlord and Tenant.

12. The Tenant thereafter filed a Further Replying Affidavit sworn on 25th August 2023 disputing the amount arrears yet acknowledging there were months when he did not pay rent.

E. Issues For Determination 13. I have considered the Landlord’s Application and the reply thereto and it is my considered view that the main issue that is before this Honorable Tribunal is:i.Whether the Tenancy should be terminated on account of non-payment of rent

F. Analysis And Determination 14. From the evidence by the parties, it is clear that the present relationship as between them falls within the definition of a controlled tenancy under Section 2 of the Landlord and Tenants (Hotels, Shops and Catering Establishments) Act Cap 301 (“the Act”) which provides:“controlled tenancy” means a tenancy of a shop, hotel or catering establishment—a.which has not been reduced into writing; or(b)which has been reduced into writing and which—(i)is for a period not exceeding five years; or(ii)contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof; or(iii)relates to premises of a class specified under subsection (2) of this section:Provided that no tenancy to which the Government, the Community or a local authority is a party, whether as landlord or as tenant, shall be a controlled tenancy;

15. The Act requires a landlord who wishes to terminate or alter the terms of a controlled tenancy to issue a notice in the prescribed form. Section 4 of the Act provides as follows;4. Termination of, and alteration of terms and conditions in, controlled tenancy(2)A landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form.

16. In seeking vacant possession, the Landlord effectively seeks to rid the Tenant of possession which in itself is termination of the existing Controlled Tenancy. For that to happen, the provision of Section 4 of the Act must be complied with.

17. This has not been done by the Landlord who has chosen an equally lawful remedy, albeit with limitations regarding termination, in the path of a Complaint as against the Tenant under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.

18. The Tenant, in his evidence, admits to having failed to pay rent as and when it fell due. I need not belabor the point.

19. The Tenant is under duty to pay rent when it falls due, failure to which the Landlord retains recourse under Section 7 of the Act.

G. Orders 20. The upshot is the Landlord’s Reference and Application dated 10th July 2023 succeeds in the following terms:a.The Landlord shall be at liberty to issue a fresh two months’ notice of termination of tenancy.b.The Tenant shall pay the outstanding arrears of Kshs. 290,000/= no later than 31st March 2023, failing which the Landlord shall be at liberty to distress.c.Tenant to continue paying rent as and when it falls due, failing which the Landlord shall be at liberty to distress without any further reference to the Tribunal.d.Costs are awarded to the Landlord.e.The Complaint is marked as settled in the above terms.

HON P. KITUR - MEMBERHON P. KITUR -MEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR THIS 6TH DAY OF FEBRUARY 2024 IN THE ABSENCE OF THE PARTIES.