B2 Yatta Ranching Co-operative Society Limited & another v Kamunde [2024] KEBPRT 317 (KLR)

B2 Yatta Ranching Co-operative Society Limited & another v Kamunde (Tribunal Case E1073 of 2023) [2024] KEBPRT 317 (KLR) (Civ) (27 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 317 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E1073 of 2023

Joyce Murigi, Member & CN Mugambi, Chair

February 27, 2024

Between

B2 Yatta Ranching Co-operative Society Limited

1st Applicant

Shadaria Enterprises

2nd Applicant

and

Fredrick Mutua Kamunde

Respondent

Ruling

1. The Landlord’s Application dated 29. 10. 2023 seeks an order that the Applicant/landlord be granted leave to levy distress for rent against the tenant for rent arrears amounting to Kshs. 226,700/= and further that the OCS Kitui police station to ensure compliance with the court orders. The Applicant has also sought for an order that the court waives the 10% duty filing fees on distress, and costs of the Application.

2. The Applicant has filed an affidavit in support of the Application sworn by Mr. Shadrack Munyao, the managing agent of the landlord wherein it has been deponed that the tenant pays to the Applicant a monthly rent of Kshs. 16,800/= for the landlord’s premises situated at Kitui Town.

3. The Applicant’s agent has further deponed in his said affidavit that the tenant has not paid rent for thirteen (13) months and the rent outstanding is Kshs. 226,700/= and continues to accumulate.

4. The Applicant has also deponed that the suit premises is his only source of income which he (sic) depends on and he has a loan to service.

5. The Tenant has also filed a replying affidavit sworn on 20. 11. 2023 wherein he has deponed that he does not owe rent arrears as claimed by the landlord and that he only owes the landlord Kshs. 13,500/= in rent arrears.

6. The tenant has further deponed that the landlord has not disclosed to court the existence of BPRT Case No. E542 of 2023 between the same parties and which is still pending in court.

7. It is the Tenant’s further deposition that the Applicant has not attached any statement in proof of the allegation that the tenant owes the landlord rent arrears in the sum of Kshs. 226,700/= and therefore prays that the landlord’s Application be dismissed.

Analysis and determination 8. The only issue that arises for determination in this Application is whether the landlord/Applicant is entitled to the prayers sought in its Application.

9. The ….of the Application by the landlord is the prayer for leave to levy distress for rent to recover rent arrears in the sum of Kshs. 226,700/=. The Tenant has disputed this figure and has stated that the only rent he owes the landlord is Kshs. 13,500/=. As things stand, it is now the Applicant’s word against the Tenant’s word.

10. The Applicant has not annexed to its affidavit any rent statements to enable the court verify the alleged rent arrears and I do not think it is enough for the Applicant to merely depone that the Tenant owes rent without ……Indeed Section 3 of Cap 301 of the Laws of Kenya requires the landlord to keep a rent book for this very purpose. The landlord has not produced any rent records or the rent book as required by the Law. Section 3….of Cap 301 in this regard provides as follows;-“The landlord of a controlled tenancy shall keep a rent book in the prescribed form of which he shall provide a copy for the tenant and in which shall be maintained a record authenticated in the prescribed manner of the particulars of the parties to the tenancy and the premises comprised therein and the details of all payments of rent and of all repairs carried out to the premises.”

11. That the Tenant has alluded to the existence of the BPRT Case No. E542 of 2023. I have perused the said file and I do note that on 3. 10. 2023, the Tribunal dismissed the Tenant’s Application dated 26. 5.2023 for want of prosecution (with costs to the landlord). I also note that the Tenant’s complaint in the said case was for the assessment of rent after a valuation of the premises and the …..service of a notice to vacate. Nothing in the said case ……on the matter at hand which is for the recovery of rent.

12. I am not, in view of my above findings in the preceding paragraph, able to find that the landlord has proved his claim for rent in the sum of Kshs. 226,700/=. It was the duty of the landlord to prove that indeed the tenant owed the alleged rent and in the absence of any cogent evidence, the landlord’s claim fails.

13. The tenant has only admitted to owing the landlord the sum of Kshs. 13,500/= in rent arrears and although I am not in a position to declare this as the true outstanding rent arrears, I will nonetheless order that the tenant pays the admitted rent.

14. In conclusion, I make the following orders;-a.That the landlord’s Application dated 29. 10. 2023 is dismissed.b.That the Tenant will pay to the landlord the admitted rent arrears of Kshs. 13,500/=.c.That each party will bear their own costs.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY OF FEBRUARY 2024. HON. CYPRIAN MUGAMBICHAIRPERSONHON. JOYCE MURIGIMEMBER22. 2.2024Delivered in the presence of Mr. Kamunde – the tenant; and in the absence of the landlord.