Bingwa Sacco Limited v Ngari [2024] KEBPRT 287 (KLR)

Bingwa Sacco Limited v Ngari (Tribunal Case E030 of 2023) [2024] KEBPRT 287 (KLR) (Civ) (16 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 287 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E030 of 2023

M Makori, Member

February 16, 2024

Between

Bingwa Sacco Limited

Landlord

and

D G Ngari

Tenant

Ruling

1. The present claim was filed vide a Reference dated 26th July 2023 and an application dated 8th July 2023 under Bingwa Sacco Limited and supported by the supporting affidavit of Jeff Muchai Mwaniki and which application was opposed vide grounds of opposition dated 22nd August 2023 by the firm of Gitonga DN Advocates.

2. The Tenant’s notice of motion dated 26th July 2023 seeks the following orders;a.That the application be certified urgent and be heard ex-parte in the first instance.b.That the Respondent/Tenant be ordered to pay arrears of rent amounting to Ksh 136,134. 29/= plus cost and give vacant possession of the premisesc.That OCS Kerugoya police station.d.That cost of this application be provided for.

3. Parties herein through their pleading confirm that there is indeed a Landlord-Tenant Relationship where the Tenant has been staying on the suit property subject to the payment of rent.

4. The issues that arises for determination from the above summary of the respective parties’ is in my humble view, the following;

(a) Whether the Applicant/Tenant is entitled to the prayers sought in its application. 5. The landlord/applicant has made a claim of unpaid rent arrears the said rent arrears is not disputed.

6. On the contrary the Tenant/respondent disputes that the application is an abrogation of his constitutional rights and that the landlord has in several occasions increased rent without any logical and probable reason.

7. I note that despite the tenant/respondent filling the said grounds of opposition he raises new issues to the application that have not been substantiated and proof of the said statements has not been attached.

8. However, this tribunal is bound to evaluate the evidence and allegations made and the fact that the tenant/respondent has not sufficiently addressed his response to the claim made does not in way lessens the burden on the landlord/applicant to prove their case.

9. I make reference to the case of; Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR the court stated:“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence in unchallenged or not.

10. In evaluating the evidence by the landlord despite not providing the necessary prove to establish that there indeed exists a Tenant-landlord relationship the tenant/respondent has confirmed the existence of such a relationship under his grounds of opposition.

11. On the other hand, the landlord/applicant makes claim of existence of a debt owed. This can only be denied by the tenant/respondent if proof of payment has been made.

12. On this basis, in absence of evidence from the tenant/respondent the claim remains uncontroverted and as such this tribunal is inclined to issue orders to the landlord/applicant.

13. However, the tribunal notes that the reference and the application fails short of establishing the exact periodic rental payments as agreed upon by parties and as such it would be utterly impossible for this tribunal to issue orders as to any amount of rent due from the date of filling of this application apart from what has been specifically mentioned in the application

What are the appropriate orders to grant in the circumstances of this case? 14. The upshot is that the applications and reference is allowed on the following terms: -i.That the Landlord is entitled to the rent arrears amounting to Kenya shillings one hundred and thirty-six one hundred and thirty-four and twenty-nine shillings (136,134. 29) claimed as at July 2023. ii.The landlord’s application dated 8th July 2023 is allowed in terms of prayers 2 and 3iii.Each party shall bear their own costs

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF FEBRUARY, 2024. HON. MIKE MAKORI - MEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the absence of the parties