Derrick James Kimani v Stephen Ndulas Kasoo [2021] KEBPRT 485 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

VIEW PARK TOWES, 7TH & 8TH FLOOR

BPRT CASE NO. 133 OF 2021 (NAIROBI)

DERRICK JAMES KIMANI..........................................................TENANT/APPLICANT

VERSUS

STEPHEN NDULAS KASOO...............................................LANDLORD/RESPONDENT

RULING

The tenant/applicant filed an application dated 8th January 2021 seeking for orders:-

1. THAT the application be certified urgent and heard ex-parte in the first instance, service thereof be dispensed with in the first instance (spent).

2. THAT pending hearing and determination of this application, the Respondent/Landlord and or his agents/servants be restrained from selling the applicant’s attached business items and or equipment valued at Kshs. 25,000/= and sound system valued at Ksh. 20,000/= among others including kitchen items and or any others attached thereto.

3.  THAT the Respondent/Landlord and or their agents/servants be compelled to release the applicants/tenants attached business items and or equipment unconditionally and allow the applicants/tenants to continue occupying the business premises and there be a stay of notice of eviction if any.

4. THAT the Respondents and or his agents/servants be compelled to unlock and or open the business premises unconditionally and allow the applicant/tenant to continue occupying the business premises and carry out his business without any threats and or conditions.

5. THAT the OCS Runda Police Station to enforce the aforesaid order and ensure peace prevails.

6. THAT the costs of the application and reference be provided for.

The application is supported by the applicant’s affidavit sworn on 8th January 2021.

The application is opposed through the Respondent’s replying affidavit sworn on 23rd January 2021.

At the hearing of the application on 3rd March 2021, the Applicant submitted that the orders of 24th February, 2021 were not complied with and that the Landlord had since taken over the premises and removed the items from the shop.

According to the Tenant, he had entered into an arrangement with the Landlord last year after running into difficulties of paying rent.

A meeting was called on 4th January 2021 for all tenants with arrears and the Landlord agreed to forfeit rent arrears for the previous year save for December 2020.

However, at the end of January 2021, the door to the tenant’s shop was pulled down and some of his items taken away.

The tenant resorted into court action after trying to talk to the Landlord in vain. He now seeks for an order of reinstatement into the suit premises. The tenant admits owing Kshs 150,000/= in rent arrears.

On his part, the landlord submitted that he did not disobey the court order of 8th February, 2021 which was served upon him via Whatsapp message.

Prior to the said service, his partner who has an equal shareholding had sold the business premises to another person in terms of documents attached to the replying affidavit. The new tenant took over possession of the premises and the applicant’s items were kept in safe custody.

According to the Landlord, he never planned to dispose the items but the tenant had not gone back to pick them.

The Landlord submitted that he could not comply with the order to give back the premises to the tenant as the same was occupied by another tenant. The Landlord was agreeable to releasing the tenant’s goods and to give him time to pay the rent arrears of Kshs 165,000/=.

From the foregoing pleadings and submissions, the only issue for determination is whether the tenant is entitled to the reliefs sought.

It is admitted that the tenant/applicant is no longer in occupation of the suit premises having been unprocedurally removed by the Landlord or his alleged partner.

Whereas the said eviction is unlawful and unacceptable in any civilized society, this court has no jurisdiction to reinstate the tenant back to the suit premises more so when it has been submitted that the suit premises were given out to a third party.

In the circumstances, I make the following orders:-

I. The Landlord/Respondent shall release the tenant’s properties removed from the suit premises forthwith under the supervision of OCS, Runda Police Station forthwith.

II. An inventory of the said goods shall be taken at the time of handing over of the said properties for record purposes.

III. The parties shall be at liberty to pursue any other issue in dispute in an ordinary court of law since this court no longer has jurisdiction to grant further relief.

IV. The costs of this case assessed at Kshs 20,000/= shall be paid by the Landlord/Respondent to the tenant.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED THIS 12TH DAY OF MARCH 2021 IN THE PRESENCE OF THE LANDLORD/RESPONDENT AND IN THE ABSENCE OF THE TENANT/APPLICANT.

HON P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL