Enock v Kakamega District Coperative Union [2022] KEBPRT 175 (KLR)

Enock v Kakamega District Coperative Union (Tribunal Case E33 of 2021) [2022] KEBPRT 175 (KLR) (Civ) (4 May 2022) (Judgment)

Neutral citation: [2022] KEBPRT 175 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E33 of 2021

Gakuhi Chege, Vice Chair

May 4, 2022

Between

Ndombi Enock

Applicant

and

Kakamega District Coperative Union

Respondent

Judgment

1. The landlord herein served a tenancy notice dated July 1, 2021 seeking to increase the tenant’s rent from Kshs15,000 to Kshs45,000 with effect from 1st October 2021 on grounds of inflation.

2. The tenant filed a reference dated September 22, 2021 to oppose the said increment. The Landlord filed a replying affidavit sworn on October 25, 2021by Christopher Musanali ho is its Chairman. Among the documents attached to the affidavit is a document marked ‘CM-2’ headed “Table of Rental Amounts for Each of the accommodation units prepared by one Philip Kabita, a holder of BA (Land Economics) and member of institute of surveyors of Kenya in respect of all the business premises within Ushirika House erected on LR No Kakamega Municipality Block 1/182. The valuer returned a figure of Kshs 45,000 in respect of the suit premises herein which is said to be on ground floor of the building. No comparables are set out in the report to guide the Tribunal.

3. In the Landlord’s replying affidavit, it is stated that the suit premises has an area of 1024Sq. feet on the ground floor of the building directly facing a main and very busy street in the town of Kakamega to wit Kenyatta Avenue with comparable rate per Sq ft being Kshs 45-60 for similar premises and that the recommended increment translates to approximately Kshs 43 per sq ft.

4. On the other hand, the tenant filed his affidavit sworn on February 28, 2022annexing a valuation report by Vamco Realtors, valuers and Estate Management Surveyors which returned the current market rental value of Kshs 24,250 at the rate of Kshs.404/- per Sqm. The report is dated 26th November 2021 and is signed by Obutu LJ.

5. The valuer has cited two comparables on page 5 of his report being Kakamega Town Block 1/153 rented by Western School Suppliers along Cannon Awori Street with a lettable area of 50sqm and a rate of Kshs 340 per Sqm. He also relies on Kakamega Town Block 1/227, Foundation House along Cannon Awori House with a lettable area of 32 Sqm at Kshs 468 per sqm.

6. I have compared both reports and I find the tenant’s report to be more reliable since it is comprehensive and has comparables. The landlord’s valuers report is very sketchy and does not contain any comparables to guide the Tribunal.

7. In the premises, the tenant’s rent is increased to Kshs 24,250 with effect from October 1, 2021as expressed in the notice of alteration of terms of tenancy dated July 1, 2021. The tenant will top up the additional rent from then.

8. In the premises, the tenant’s rent is increased to Kshs.24,250 with effect from October 1, 2021as expressed in the notice of alteration of terms of tenancy dated July 1, 2021. The tenant will top up the additional rent from then.

9. In regard to costs, the same are in the court’s discretion but always follow the event. As both parties have partially succeeded, I shall order each to meet own costs of the reference.

10. In conclusion therefore, the final orders that commend to me herein are that:-(i)The landlord’s notice to alter terms of tenancy dated 1st July 2021 is upheld with amendment of monthly rent increment to Kshs 24,250 with effect from 1st October 2021. (ii)The tenant shall top up the difference to cover the increased amount from 1st October 2021 to date within the next Thirty days (30) hereof failing which the landlord shall use lawful means to recover the same.(iii)Each party shall bear own costs of the reference.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY OF MAY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling read in the absence of the parties.