Benard Mutua Kiema v Berita Mulwa [2022] KEBPRT 90 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. 615 OF 2020 (NAIROBI)

BENARD MUTUA KIEMA.....TENANT/APPLICANT

AND

BERITA MULWA............LANDLADY/RESPONDENT

RULING

1. The Tenant moved the Tribunal on 11th June 2020 by a notice of motion application under certificate and a reference dated 12th June 2020 seeking protection against eviction without notice.  I granted interim orders on 2nd July 2020which orders are in place to date.

2. The Landlord moved this Tribunal on 14th July 2020 via a notice of motion under certificate seeking the said orders to be set aside and/or vailed and leave to levy distress to recover all the rent arrears.

3. On 2nd December 2020, the Tenant yet again filed a notice of motion application seeking orders similar to the 11th June 2020 application and an additional orders to stop rent increase from Kshs 12,500/- to Kshs 15,000/- without leave of the Tribunal and the Landlord to be restrained from locking and/or letting out the premises.  The prayers were granted on 14th December 2020 and the rent increase stopped.

4. A replying affidavit was sworn on 6th January 2021 in response to the notice of motion of 2nd December 2020 wherein several averments have been made amongst them being rent default and arrears and several incidents narrated.  An agreement has been annexed for rent of Kshs 12,500/- and receipts for Kshs 15,000/-.

5. The Tenant in this the case had filed a further affidavit in support to their application of 2nd December 2020 wherein he avers that he has redone the interiors on the shop at a cost of Kshs 210,000/-.  City council has demolished part of the shop and the extra room was in compensation thus rent is Kshs 12,500/-.  He stated that all the incidences were non issues and not proven.  A loan statement has been annexed by the Tenant and he urges the Tribunal to review the rent to Kshs 7,000/-.

6. Having read the submissions of the Landlord and the Tenant having not appeared on several occasions and having failed to file submissions, I am of the opinion that a lease existed for Kshs 12,500/-.I believe a road destroyed the shop and additional space was given.  What is not clear is the charges for the space or whether it was to be a replacement.

7. The agreement is clear.  Nothing would be easier than doing an agreement if new terms/space were involved as such.

8. I find rent to be Kshs 12,500/- unless increased in the manner prescribed by law.

9. I have tried to look for arrears amount to no avail.  No statement is provided other than a claim for Kshs 30,000/- owing as at the submissions date.

10. I am therefore inclined to order the Tenant to keep paying Kshs 12,500/- per month in default, the Landlord to distress for rent arrears.

11. The Tenant to remain in the premises.

12. The Landlord and Tenant to file statements of accounts within 30 days and fix the reference for hearing within 90 days.

13. Costs in the cause.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 21ST DAY OF JANUARY, 2022 IN

THE ABSENCE OF THE PARTIES

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL