Grace Mwihaki Njoroge v Ann Ngaru Waithaka [2021] KEBPRT 314 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 222  OF 2021  (NAIROBI)

GRACE MWIHAKI NJOROGE................TENANT/APPLICANT

VERSUS

ANN NGARU WAITHAKA..............LANDLORD/RESPONDENT

RULING

1.  Through a motion dated 5th March 2021, the Tenant/Applicant approached this Tribunal seeking for a restraining order against the Landlord/respondent from evicting, locking the premises and/or threatening to evict her.

2.  Prayer 2 of the application was allowed at the ex-parte stage and the same is therefore spent.

3.  The Applicant further seeks that the O.C.S Kamukunji Police Station do enforce the said order.

4.  The application is supported by the Tenant’s affidavit sworn on 5th March 2021 in which she deposes that no rent arrears are owing to the Landlord in respect of monthly rent of Kshs.23,600/-.

5.  She was served with a termination notice dated 5th March 2018 which is the subject matter of Tribunal case no. 390 of 2018 pending before the Tribunal.

6.  On 4th March 2021, the Landlord closed the business premises with all the Tenant’s stock inside without any lawful cause and/or notice in an act of impunity.

7.  It is the Tenant’s case that it is in the interest of justice that she be granted orders in terms of the application.

8.  In response to the application, the Landlord/respondent filed a replying affidavit through her special attorney one John Machua Waithaka stating that the tenant has been in occupation of the suit premises without a formal agreement and that despite various verbal requests to execute a lease agreement, she refused and/or ignored the same.

9.  The Landlord admits closing the shop so that she could secure the lease agreement and that the said closure was not malicious and was meant to protect the Landlord and the Tenant through the lease agreement.

10. The Landlord denies threatening or harassing the Tenant as alleged.

11. The Landlord states that the rent paid by the Tenant does not make economic sense as occupants of shops next to her pay Kshs.40,000/- and that refusal by the tenant to execute the lease agreement was meant to avoid payment of current market rent.

12. Directions were issued on 19th May 2021 for both parties to file written submissions.  They both complied.

13. Having considered the pleadings and the parties submissions, I find that the issues for determination herein are as follows:-

(a) Whether the application ought to be granted or denied.

(b) Who is liable to pay costs of the application?

14. I have considered the application and the submissions and make the following findings:-

(i) The Respondent/Landlord has admitted closing the Tenant’s shop without a court order with a view to enforcing execution of a lease agreement.

(ii)  There is no law that states that parties must have a lease agreement as cap. 301, Laws of Kenya recognizes oral agreements in respect of business premises.

(iii)  The Landlord complains that the current rent being paid by the Tenant is below the market rate.

(iv)  The procedure for increasing rent for protected business premises is set out in section 4 of Cap. 301, Laws of Kenya and there is no evidence that the Landlord has invoked the said provision in regard to rent payable for the suit premises.

(v)  Closing the shop without a court or Tribunal order is illegal, null and void and cannot be justified by the reasons advanced by the Respondent.

15. In the premises, the Tenant/Applicant has met the test laid down in the case of Giella – vs- Cassman Brown & Co. Ltd (1973) EA 358and I proceed to allow the application in terms of prayers 2, 4 and 5 thereof.

16. The Tenant’s costs for the application are assessed at Kshs.15,000/- all inclusive.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 1ST DAY OF SEPTEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Mr. Kinyua for the Applicant/Tenant

Miss Kimachia for the Landlord.