Florence Kathure Kiarie v Wilson Kamau Wambugu [2020] KEBPRT 18 (KLR) | Controlled Tenancy | Esheria

Florence Kathure Kiarie v Wilson Kamau Wambugu [2020] KEBPRT 18 (KLR)

Full Case Text

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 1043 OF 2020 (NAIROBI)

FLORENCE KATHURE KIARIE…………..….……………..…TENANT/APPLICANT

VERSUS

WILSON KAMAU WAMBUGU…………………..........…LANDLORD/RESPONDENT

RULING

The Tenant’s/Applicant’s application dated 21st December 2020seeks the following prayers;

1. Spent.

2. That a temporary order do issue prohibiting the Landlord from evicting, closing the business premises at room No.8 Mwalimu AA and/or stopping the Tenant from enjoying quiet possession of the premises pending the hearing and determination of this matter (I have abridged the text in the application).

3. That a mandatory order do issue prohibiting the Landlord from evicting and or stopping the Tenant from enjoying quiet possession of the premises upon hearing and determination of this matter (abridged).

4. That an order be issued directing the Landlord to account for all the goods and items carted away from the business premises and to remedy and/or pay for any defects, damages or loss to any of the items.

5. The Landlord be directed to pay for loss of business.

6. Costs.

The grounds upon which the application is based may be summarized as follows:

1. That on 16th November 2020 the Landlord and his agents forcefully entered the business premises of the Tenant, carted away the Tenant’s business goods and closed the premises.

2. That the Tenant was not in any rent arrears.

3. That the Tenant has carried out renovations at great cost, which he is yet to recover.

4. The Tenant had several employees.

5. The acts of the Landlord are illegal.

The supporting affidavit sworn by the Tenant may also be summarized as follows;

1. That on 16th November 2020, the Landlord carted away the Tenant’s goods and closed of the premises.  A proper/full inventory was not taken.

2. That a full list of inventory of the items carted away is the list annexed as exhibit FK 4.

3. That in March 2013, the Tenant spent in excess of Kshs 500,000/- carrying out the renovations set out at paragraph 7 of her affidavit.

4. That the Landlord did not give the Tenant any notice of eviction.

5. That the rent for October 2020 was paid on 20th October 2020.

The Landlord has opposed the Tenant’s application by his replying affidavit sworn on 23rd February 2021 which I summarize as follows;

1. That on 7th November 2020, the Landlord took vacant possession of the premises the Tenant was using as a salon.

2. That the Tenant later re-applied for shop No.8 but the Landlord rejected her application in favour of Kefa Onkoba with whom the Landlord executed a lease agreement on 4th December 2020.

3. That by 4th December 2020, the Tenant was out of the premises.

4. That the new Tenant Kefa Onkoba continues to pay rent for the disputed premises.

5. That from the photographs annexed as WKW3 the Tenant is not currently in occupation of the suit premises.

6. That the Tenant has not paid any rent since November 2020.

7. That the Applicant is not a Tenant of the Respondent and the jurisdiction of this court is ousted.

The central issue for determination at this point is whether the Landlord should be prohibited from evicting the Tenant from the business premises pending the hearing of the Tenant’s complaint dated 21st December 2020.  The complaint concerns;

“The Landlord who has without any colour of right entered into the business premises, carted away trading goods and is in the process of letting out the said premises to a third party without either following the law and/or giving any due notice to the Tenant.  The Tenant has used the said premises from April 2013 and further used more than Kshs 500,000/- in improvements, renovations in March 2013, was before covid 19 restrictions employing eight people and has no rent arrears.”

The tenancy between the parties herein, as far as the material placed before the Tribunal goes has not been reduced into writing.  Further the terms of the tenancy in terms of duration and rent payable are not clear.  I will safely proceed on the basis that the tenancy herein is a controlled tenancy.

The Tenant/Applicant’s position is that the Landlord on 16th November 2020 invaded her premises and carted away various business items and further locked the premises.  The replying affidavit by the Landlord is silent on this carting away of the Tenant’s goods and the locking of the premises.  The only averment I find in the Landlord’s affidavit coming anywhere near a response to the Tenant’s claim of the closure of the premises is paragraph 3 of the Landlord’s affidavit where the Landlord states;

“That on or about 7th November 2020, I took back vacant possession from Florence Kathure Kiarie who used to be my Tenant for a hair salon business on the premises”.

The Landlord does not state what procedure he followed on “taking back possession” of the premises.  This being a controlled tenancy, the only avenue open for the Landlord to “take back possession would have been by terminating the tenancy under the provisions of section 4 of Cap 301.  This does not seem to have been done.

The admission by the Landlord that he “took back possession” on 7th November 2020 and the Tenant’s claim that the premises was locked by the Landlord on 16th November 2020 are events which in my view are so closely related as to lend credence to the claims of the Tenant that indeed her business items were carted away by the Landlord.

This possibility is further buttressed by the proceedings of 27th January 2021 wherein counsel for the Tenant applied to be allowed to put in an inventory of the goods carted away by the Landlord.

Counsel further informed court that the Tenant’s premises were only opened on 26th January 2021.  These statements were made in the presence of counsel for the Landlord.

The fears of the Tenant that the Landlord was in the process of letting out the premises to a third party are borne out by the averments of the Landlord at paragraph 6 and 8 of his replying affidavit, the Tenant’s fears are not without basis.

The Landlord having failed to demonstrate that he followed the termination clauses/provisions under Cap 301 and further having failed to explain the circumstances under which he came to “take back possession” from the Tenant, and having gone ahead to lease out the suit premises to a third party who has not taken possession, and the Tenant being now, fully in occupation of the suit premises since 26th January 2021, I will allow the Tenant’s/Applicant’s application in terms of prayer 3 of the said application.  The determination of prayer 4, 5 and 6 will be done during the hearing of the Tenant’s complaint dated 21st December 2020.

It is so ordered.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

Ruling delivered in open court by Hon Cyprian Mugambi Nguthari this 6th day of April, 2021 in the presence of Miss Mwirachia for the Landlord/Respondent and in the absence of the counsel for the Tenant/Applicant.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL