Jackson Kibet v Joseph Mwai [2021] KEBPRT 59 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E480 OF 2021 (NAIROBI)

JACKSON KIBET..................................TENANT/APPLICANT

VERSUS

JOSEPH MWAI...........................LANDLORD/RESPONDENT

RULING

1. The Tenant’s application dated 9th September 2021 seeks orders prohibiting the Landlord from in any manner whatsoever or howsoever interfering with the Tenant’s quiet occupation and lawful enjoyment of the suit premises located at Ongata Rongai. The application also seeks payment of damages amounting to kshs 21,000/- and Kshs 3,000/- each day the barber shop remains in the illegal custody of the Landlord.

2. The application is supported by the affidavit of the Applicant Jackson Kibet which I summarize as follows;

a. That the Tenant is the Respondent’s Tenant for the last two years and he has dutifully paid his rent and currently owes no rent arrears.

b. That in August 2021, the Landlord virtually instructed the Tenant to vacate the business premises.

c. That on 3rd September 2021, the Landlord/Respondent locked the Tenant’s business premises.

d. That the Landlord installed an employee illegally at the business premises.

e. That the Respondent’s actions are inhuman.

3. The application is opposed. The Landlord has filed a replying affidavit and grounds of opposition which I summarize as follows;

a. That the Applicant has not adduced evidence to demonstrate that he is a sub-tenant.

b. That the Tribunal has no jurisdiction to hear this matter as the Applicant is neither a Tenant nor a sub-tenant.

c. That the tenancy agreement between the Landlord and the Tenant is still operational.

d. That the Landlord has no tenancy agreement with the Applicant.

e. That the lease agreement entered into between the Landlord and the Applicants’ employer is a term lease of 12 months from 20th May 2021.

f. That the said lease prohibits the Tenant from sub-leasing the premises without the consent of the Landlord.

g. That the Tenant has not adduced any evidence to show he has been paying rent.

4. The application was heard orally on 7th October 2021. The oral submissions of the parties more or less followed the averments in their respective affidavits save for the additional submission by the Applicant that indeed he had been employed by one Rachel who left the suit premises to him when she relocated to another area. The Tenant has further stated that he accompanied the said Rachel to the Landlord when he was taking over the premises. I have taken the oral submissions of the parties into account while writing this ruling.

5. The issues that arise for determination in this application in my humble view, are the following;

a. Whether there exists a Tenant/Landlord relationship between the Applicant and the Respondent herein.

b. Whether the Tenant is entitled to orders sought in his application dated 9th September 2021.

6. On Issue (a):

a. The Applicant has stated that he has been a Tenant in the Respondent’s premises for a period of two years and he has been paying rent. The supporting affidavit sworn by the Tenant does not state how he became the Respondent’s Tenant. The Applicant, though, has stated in his oral submissions that he was employed by one Rachel who left the business premises with him. He further states that he had paid rent for the months of July and August 2021.

b. The Landlord/Respondent has stated that he is a stranger to the Applicant. He has also stated that it is the employer of the Applicant who is his Tenant and indeed there is an operational lease agreement between him and the said employer of the Applicant.

c. The Respondent has annexed the said lease and clause 3(vii) of the said lease agreement states as follows;

3. The Tenant agrees with the Landlord as follows;

(vii) Not to sublet the demised premises or any part thereof during the period of the tenancy without the consent in writing of the Landlord or his authorized agent which consent shall not be unreasonably withheld.

7. The Applicant admits that he took over the premises from his previous employer one Rachel. The lease agreement between Rachel and the Respondent herein seems to be still active. The only way Rachel could have legally sublet the suit premises to the Applicant was by obtaining a consent to so sublet from the Respondent in accordance with clause 3(vii) of the lease agreement aforestated.

8. The Applicant has not demonstrated that any such consent to sublet was obtained by Rachel from the Landlord. his purported tenancy is therefore an illegality and his mere presence in the suit premises did not create any legal relationship between him and the Landlord.

9. I have perused the affidavit of the Applicant. Whereas he states that he has paid rent to the Respondent, the Tenant has not shown how the rent was paid and in the circumstances, I find no evidence that the Landlord received any rent from the Tenant.

10. I therefore do find that there does not exist a Landlord/Tenant relationship between the parties herein and consequently the Tribunal has no jurisdiction to hear and determine this dispute.

11. That being the finding of the Tribunal, the reference dated 9th September 2021 and the notice of motion of the same date are hereby dismissed with no order as to costs.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 3RD DAY OF DECEMBER, 2021 IN THE PRESENCE OF JACKSON KIBET (TENANT) AND MR KARIUKI FOR THE LANDLORD.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL