Dan Kizito v Peter Maingi Muigai [2021] KEBPRT 103 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 290 OF 2019 (NAIROBI)

DAN KIZITO......................................TENANT/APPLICANT

VERSUS

PETER MAINGI MUIGAI.....LANDLORD/RESPONDENT

JUDGEMENT

1. The Tenant’s reference dated 27th March 2019 came up for hearing on 16th June 2021.  The parties tendered oral evidence.  Mr Dan Kizito the Tenant appeared in person while the Landlord was represented by Mr Wathome Advocate.

2. The reference by the Tenant is expressed to be brought under section 12(4) of Cap 301 and is in the terms that the Landlord has locked the Tenant’s business premises contrary to Cap 301 of the Laws of Kenya.  The reference also sought that the OCS Embakasi Police Station to ensure compliance of the orders.

3. The Tenant’s Case:

The Tenant’s testimony can be summarized as follows;

a. That his reference is the one dated 27th March 2019 and it is in opposition to the Landlord’s tenancy notice dated 18th February 2019.

b. That he is aware that he is supposed to pay Kshs 210,000/- being the amount of rent he owes to date.

c. That he wants to vacate the premises and requests for a period of three months to clear the rent arrears, at the end of the three months, the amount to be cleared would have risen to Kshs 240,000/-.

d. That it is on record that the Landlord owes him Kshs 45,000/-.

Upon Cross-examination by Mr Wathome Advocate, the Tenant stated as follows;

e. That it is true that the court directed that the Tenant be paid Kshs 45,000/-.

f. That he has not paid rent from September 2019 to date.

g. That he locked the premises which is a barber shop since he earns nothing from it.

h. That his clients ran away because of the Landlord’s actions of locking the premises.

i. That there is no business going on in the premises and rent continues to accumulate.

j. The structure is partitioned by aluminum but the Tenant does not have the receipts used to purchase the materials used to partition the shop.

4. The Landlord Peter Maingi Muigai testified as follows;

That he sought to rely on his affidavit dated 27th May 2021 and his notice dated 18th February 2019.  The Landlord’s said affidavit may be summarized as follows;

a. That the Applicant is the Respondent’s Tenant at an agreed monthly rent of Kshs 10,000/-.

b. That due to the Tenant’s inability to pay rent, the Tenant agreed to vacate the premises.

c. That the Tenant is a persistent rent defaulter and the last time he paid rent was on 22nd February 2019.

d. That the Tenant has been issuing threats to the Landlord and vandalizing the suit premises.

e. That the notice to terminate tenancy dated 18th February 2019 was served upon the Tenant who has since not paid rent but instead ran to the Tribunal.

f. That since court orders were issued on 29th March 2019, the Tenant has not paid rent.

g. That the rent arrears continue to accumulate.

Upon cross-examination by the Tenant, the Landlord stated;

h. That it is not true that the Landlord was to refund any money to the Tenant.

i. That the Landlord has never locked the suit premises.

j. That it is true that the parties appeared before the Chief.

k. That the Tribunal did not find the Landlord to have owed the Tenant any money.

l. That it is true that the Tenant paid Kshs 30,000/- for the stair case.

5. The only issue for determination is what orders should be given in light of the Tenant’s complaint dated 27th March 2019.

6. The main complaint is that the Landlord locked the Tenant’s business premises illegally ie contrary to Cap 301 of the Laws of Kenya.

7. The Landlord has in his evidence denied that he locked the said premises while the Tenant states that the same were locked by the Landlord.  It is not possible to establish the true position as regards the closer of the premises as it seems to be the word of one party against the word of the other.  It is clear though, that on 29th March 2019, the Landlord was ordered to reopen the Tenant’s business premises forthwith.  It would seem the premises were opened as the Tenant did not raise the issue any more.

8. The Tenant in his testimony has stated that he would like to vacate the suit premises.  He admits that he has not paid rent since February 2019 but blames the Landlord’s interference with his business for the failure to pay the rent.  I have not been able to find any evidence of such interference.

9. The Tenant has also requested for three months to clear the rent arrears.  The Landlord on his part, wants the Tenant out of his premises for non-payment of rent.

10. I also note that the Tenant admits owing rent in the sum of Kshs 210,000/- and further admits that he is the one who since September 2019 locked the suit premises due to lack of business.  The tenancy between the parties herein has all but collapsed.  The Tenant is not in the suit premises, he is not paying any rent to the Landlord; indeed, he has not paid any rent since September 2019.

11. Under section 12(4) of Cap 301, the Tribunal is empowered to investigate any complaint brought before it and make any such order thereon as it deems fit.  The orders which are appropriate to be made in the circumstances of this case, and which I hereby issue, are as follows;

a. That the Tenant is hereby ordered to vacate from the suit premises forthwith failure to which the Landlord will be at liberty to evict the Tenant from the said premises.

b. The Tenant is hereby ordered to pay to the Landlord all the outstanding rent for the suit premises up to the date of this ruling.

c. The Tenant’s complaint dated 27th March 2019 is dismissed with costs to the Landlord.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Judgement dated, signed and delivered by Hon Cyprian Mugambi Nguthari this5th day of November 2021 in the presence of Mr Wathome for the Landlordand in the absence of the Tenant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL