Gathaka & another v Koth t/a Ziani Wines [2025] KEBPRT 298 (KLR)

Gathaka & another v Koth t/a Ziani Wines (Tribunal Case E122 of 2025) [2025] KEBPRT 298 (KLR) (Civ) (22 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 298 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E122 of 2025

CN Mugambi, Chair

May 22, 2025

Between

Jessee Gathaka

1st Applicant

Elegant Investments (1996) Ltd

2nd Applicant

and

Michael Koth T/A Ziani Wines

Respondent

Ruling

1. The Landlord’s Application dated 13. 3.2025 seeks the following orders;-a.Spentb.Spentc.That the Tribunal be pleased to grant the Applicants leave to access the suit premises by breaking open and removing goods therein.d.That the Applicants be allowed to let the same premises to another Tenant.e.That the goods therein be removed under the supervision of an officer of the Tribunal/Area Chief.f.That the costs of the Application be borne by the Respondent/Tenant.

2. The Applicants have sworn an affidavit in support of the Application wherein it has been deponed that the Tenant deserted the suit premises and had by March 2025 accumulated rent arrears in the sum of Kshs. 180,000/=.

3. The Applicants have also deponed that the Tenant fled the suit premises and the Tenant is not likely to reopen and/or to pay the rent arrears.

4. It is further deponed that efforts to trace the Tenant/Respondent have not borne any fruits.

5. The only issue that arises for determination in this Application is whether the Landlord/Applicant is entitled to the orders sought in his Application.

6. The Applicant in his Application seeks to be allowed to take over the suit premises and let it out to another Tenant. This effectively means that the Landlord is seeking to terminate the tenancy between himself and the Tenant. In order to achieve this objective, Section 4(1) of Cap 301 requires that the Landlord complies with the provisions of the Act as far as termination of controlled tenancies is concerned. Section 4(2) of Cap 301 further, and in mandatory terms requires the Landlord to issue a notice of termination of tenancy to the Tenant. The Landlord cannot therefore seek to terminate the tenancy herein by way of an Application such as the present one, absent the notice to terminate tenancy.

7. The Landlord has also deponed that the Tenant has not paid rent and as at March 2025, the outstanding rent arrears was Kshs. 180,000/= and which I believe continues to accrue. I have no difficulty in allowing the Landlord leave to levy distress for their rent which leave is not to be equated to eviction.

8. Consequently, I will make the following orders in disposing of this Application;-a.That the Landlord is hereby granted breaking orders into the suit premises for purposes of levying distress for rent for the recovery of the outstanding rent arrears.b.That the breaking in into the suit premises be supervised by the area chief.c.That the distress for rent to be carried out by a licensed auctioneer.d.That the Reference filed by the Landlord is allowed in the terms above.e.This file is ordered closed.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF MAY, 2025. HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the absence of the parties.