Florence Wanjiku Muthee, James Gathima Njuguna, Ben Ngetta Muraguri, Juliah Warigia Gathungu & Rodah Mwihaki Kambiv Juliah Wanjiru Mwangi [2021] KEBPRT 418 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 86  OF 2021  (NAIROBI)

FLORENCE WANJIKU MUTHEE

JAMES GATHIMA NJUGUNA

BEN NGETTA MURAGURI

JULIAH WARIGIA GATHUNGU

RODAH MWIHAKI KAMBI.......................LANDLORDS/APPLICANTS

VERSUS

JULIAH WANJIRU MWANGI..........................TENANT/RESPONDENT

RULING

1. By a motion dated 22/1/2021, the Landlord/Applicant is seeking for an order for police assistance to HARIKI AUCTIONEERS to break in and attach the Tenant’s proclaimed goods in shop no. 2 on L.R. No. 209/136/18 (KIRITI HOUSE).

2. It is the Landlord’s case that the Tenant has refused to pay rent which had fallen into arrears of Kshs.427,000/- as at 22nd January 2021.

3. Upon being proclaimed by the Auctioneer on 12th October 2020, the Tenant is alleged to have closed the business premises in an effort to frustrate attachment of the proclaimed goods.

4. A notice of appointment of advocates was filed by KAMOTHO NJOMO & CO. Advocates on behalf of the Respondent/Tenant but no response was filed thereafter.

5.  I have however noted that in the submissions dated 19th May 2021 filed by the Tenant’s advocates, a replying affidavit is said to have been filed in which it was deposed that the Tenant paid Kshs. 4 million as goodwill before taking up possession  of the premises.

6.  The Tenant further submits that the said goodwill was to be refunded upon the Tenant vacating the premises and that the Landlord has never issued receipts as required by Law.

7.  It is submitted that the Tenant’s operations were grounded to a halt as a result of covid-19 pandemic.

8.  Relying on the case of Amra Leasing Limited – vs- DAC Aviation (E.A) Limited and 2 others (2020) eKLR in which rent payment was postponed for 9 months, the Tenant submits that the Tribunal should take judicial notice of the fact that the pandemic has had devastating effects on the economy and various sectors of the economy and that rent had been waived for a considerable deration to give business a new lease of life.

9.  On the other hand, the Landlord submits that the Tenant has not given any legal explanation as to why she does not want to settle the arrears despite the Landlord’s denial that they took any goodwill from her.  The claim of payment of goodwill is referred to as a mere allegation without proof by the Landlord.

10. I have considered the application and the pleadings including the submissions by the Tenant which refer to a replying affidavit and the only issue for determination is whether the application ought to be allowed or rejected.

11. Having taken into consideration all  the materials placed before me, I make the following findings:-

(i)  The Tenant’s claim for payment of goodwill against the Landlord cannot be the basis for non payment of rent even if it was proved to be true.

(ii)  The Tenant admits that her business grounded to a halt which confirms the Landlord’s allegation that the premises have remained closed.

(iii)  The Landlord is entitled to levy distress for rent under section 3 of the Distress for Rent Act Cap 293, Laws of Kenya with or without leave of this Tribunal.

12. In the premises, I allow the Landlord’s application in the following terms:-

(a) The .O.C.S KAMUKUNJI POLICE SATION shall provide security to HARRISON KIHARA NGUNJIRI T/A HARIKI AUCTIONEERS for the purposes of breaking into and attaching the Tenant’s proclaimed goods in shop no. 2 on L.R. NO. 209/136/18 known as KIRITI HOUSE.

(b) The Tenant shall pay costs of Kshs.15,000/- to the Landlord for this application.

It is so orders.

DATED, SIGNED & DELIVERED VIRTUALLY THIS 21ST DAY OF JULY 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

No appearance by parties despite the matter having been cause listed.