Gaithuma John Muthoga v George Simon Gikonyo [2021] KEBPRT 643 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 45 OF 2021 (NAIROBI)

GAITHUMA JOHN MUTHOGA...............................TENANT/APPLICANT

VERSUS

GEORGE SIMON GIKONYO...................LANDLORD/1ST RESPONDENT

RULING

The Tenant’s application is the one dated 14th January 2021 wherein the prayed for orders;

1. That the Landlord be ordered to open and allow the Tenant access to the business premises immediately to continue with her (sic) business and failure to open, the Tenant to break and gain access with the assistance of the OCS Kayole Police Station.

Prayer 3 and 4 are closely related to the first prayer.

The application is based on the grounds;

i.  That the closure of the premises and threats of eviction are occasioning the Tenant untold hardship.

ii. That the actions of the Landlord are illegal and contrary to the provisions of Cap 301.

iii. That the Tenant/Applicant is a protected Tenant.

The Applicant has sworn an affidavit in support of his application which affidavit may be summarized as follows;

i. That the 2nd Respondent closed the Tenant’s premises on 11th January 2021 and inside the said premises were perishable goods.

ii. That the Tenant has not paid rent for a period of six months.

iii. That the Respondent/Landlord has already closed the premises.

iv. That no lawful notice has ever been served upon the Tenant.

The 1st Respondent/Landlord is opposed to the application by the Tenant and his replying affidavit may be summarized as follows;

i. That the present application has been overtaken by events as the status quo has already changed.

ii. That the Tenant is in arrears of rent.

iii. That the distress for rent was executed pursuant to clause 4(b) of the tenancy agreement between the parties.

iv. That the Tenant’s movable properties were attached for sale on 19th January 2021.

The Tenant was granted leave to file a further affidavit which states;

i. That the Landlord has not disputed closing the Tenant’s business indefinitely and asking the Tenant to vacate.

ii. That the tenancy between the parties is a controlled tenancy and the Landlord is still obliged to follow the relevant law in terminating the said tenancy.

iii. That since the closure of the business, the Tenant has suffered great loss.

At the hearing of the application, the Tenant relied on his affidavits and added that all the distrained goods be released to him.  He reiterated that the seizure of the goods was illegal.

Mr Opai for the Landlord/1st Respondent in response contended that the Tenant has not paid rent from 28th April 2020 to 28th December 2020.  He further submitted that the Tenant’s goods were proclaimed on 4th January 2021 and attached on 19th January 2021. The Tenant came to court after distress for rent had issued.  The suit property has already been leased out and the Tenant’s goods have been sold.

It is clear from the tenancy agreement that the tenancy herein is/was for a period of one month with an option to renew.  It is therefore a controlled tenancy under the provisions of section 2 of Cap 301.

It is also common ground that as at the time the Landlord served the proclamation notice upon the Tenant on 4th January 2021, attached and eventually sold the Tenant’s goods, the Tenant was in arrears of rent amounting to Kshs 55,000/-.  The goods were attached for sale on 19th January 2021.  The application herein was filed on 14th January 2021. Upon presentation, no preservatory orders were issued as the matter was fixed for mention on 28th January 2021 and eventually heard on 10th February 2021.

It is also common ground that the Tenant had been removed from the suit premises by the time he came to the Tribunal and there is a further allegation that the premises has been given out to another Tenant.

Whereas I have seen evidence of the proclamation of the Tenant’s goods, I have not seen any evidence of the sale of the same by the Landlord’s agents neither has any account been rendered to the Tribunal or disclosed in the Landlord’s pleadings.  This is in view of the fact that the Tenant has complained that the value of the goods attached is far higher than the debt/rent owing to the Landlord.

While agreeing that the Landlord’s right to levy for distress under section 3 of the Distress for Rent Act Cap 293 had accrued due to the admitted outstanding rent arrears, the Tenant retained the right to be given an account of the sale of his goods or at the very least, the Landlord was under a duty to disclose the proceeds of the alleged sale and the application thereof.  The Tenant’s complaint is not idle if one considers the list of his attached properties annexed to his affidavit sworn on 14th January 2021 and whose contents elicited no comment from the Landlord.

The Landlord’s contention that the suit premises have already been leased out to a third party is patently illegal and flies on the face of the provisions of section 4 of Cap 301.  Having already found that, the tenancy between the parties herein is a controlled tenancy, the Landlord could only have terminated the same in accordance with the provisions of section 4 of Cap 301.  It is therefore clear that the Landlord in this matter extended his right to levy distress to an eviction of the Tenant and ended terminating the tenancy illegally.

Be that as it may, I am unable in view of the admission by both parties that the Tenant is already out of the premises, to grant the injunctive orders as sought by the Tenant.  The Tenant is no longer a Tenant of the Landlord, an unfortunate illegal scenario created by the Landlord.

The Tenant’s application is disallowed with no orders as to costs.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

Dated and delivered in open court this 12th day of March 2021 by Hon P. May in the presence ofthe Tenant/Applicantand in the absence of theLandlord.

Kalolia: Court Assistant

HON P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL