Janiffer Kang’ethe v Ruth Mwangi [2021] KEBPRT 122 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 150 OF 2021 (MOMBASA

JANIFFER KANG’ETHE…………..…………………………TENANT/APPLICANT

VERSUS

RUTH MWANGI…………………….………………….LANDLADY/RESPONDENT

RULING

1. The Tenant’s/Applicant’s notice of motion dated 25th June 2021 seeks the following orders;

a. Spent.

b. That the Tribunal be pleased to grant orders compelling the Respondent/Landlady to reconnect the Applicant’s power supply.

c. That this Tribunal be pleased to grant orders directing the Respondent to make a power meter separation to the Applicant from the main meter being used by all the other Tenants to arrest conflicts arising from electricity consumption amongst the Tenants.

d. Compensation of Applicant’s/Tenant’s goods of trade spoilt as a result of said disconnection.

e. Damages for loss of business in terms of daily income affected due to the said disconnection.

f. Particularly orders restraining the Landlady by herself etc from further disconnection, harassment and/or in any manner whatsoever interfering with the Applicant’s/Tenant’s quiet enjoyment of the subject premises pending the hearing of the complaint herein.

g. The Respondent to issue the Tenant with rent payment receipts.

h. The OCS Mtwapa Police Station to ensure compliance.

i. Costs.

2. The application is supported by the affidavit of the Applicant sworn on 25th June 2021.  I summarize the contents therein as follows;

a. That the Tenant took possession of the suit premises in December 2020.

b. That the Landlady promised the Tenant that she would install a separate power meter but never honoured the promise.

c. That the entry of a butcher Tenant spiked the power consumption.  The Tenant reported to the Landlady who ordered the Tenant to leave the suit premises.

d. That the Landlady later passed the management of the suit premises to agents.

e. That the Landlady has frustrated KPLC staff who had issued the Tenants with forms to fill for the purposes of power separation.

f. That on 3rd May 2021, the Landlady disconnected the Tenant’s power supply.

g. That the Tenant’s goods listed under paragraph 10 of her affidavit were spoilt as a result of the power disconnection and she blames the Landlady for the loss.

3. Prayers sought in her application dated 25th June 2021;

a. The tenancy between the parties has not been reduced in writing.  The Respondent in her replying affidavit has admitted that indeed the agreement was oral.  At the very outset, I do find that the tenancy between the parties herein is a controlled tenancy within the meaning ascribed to a controlled tenancy under section 2(a) of Cap 301.  The relationship between the parties is therefore governed by the provisions of Cap 301.

b. The Respondent in her oral submissions confirmed that the Tenant did not owe her any rent.  The Respondent informed that she had “returned” to the Tenant the rent for September 2021.  The Respondent stated further that she had served the Tenant with a tenancy notice to vacate the premises on 25th June 2021.  It is clear from the affidavits and oral submissions of the parties that there exists two problems or issues between the parties herein.  These are the Respondent’s desires to have the Tenant move out of the premises and the Respondent’s disconnection of the Tenant’s power supply.

4. On the issue of the Respondent’s desire to have the Tenant vacate the premises, I note that the Respondent has stated that he served the tenancy notice to terminate the tenancy upon the Tenant.  I have not seen any tenancy notice neither has there been presented any evidence of the service of the said notice.  If indeed the Respondent is desirous of terminating the tenancy, then he ought to serve the tenancy notice required under section 4(2) of the Act (Cap 301).  In the absence of such notice, the Respondent’s attempts would be illegal and of no effect.

5. The question that arises in dealing with the second issue between the parties is whether the Tribunal has the power to determine issues to do with disconnection of electricity supply in premises subject of a controlled tenancy;

6. Section 12(4) of Cap 301 is in the following terms;

“In addition to any other powers specifically confined on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the Landlord or the Tenant, and may make such orders thereon as it deems fit.”

7. I think the Tenant’s complaint, the disconnection of electric power by the Respondent, falls in this category of “any complaint” that the Tribunal may investigate.

8. It is clear from the pleadings that the Tenant’s complaint is that other Tenants and particularly the Tenant with a butchery is consuming more electric power making the power bill to rise beyond what the Tenant has consumed when the bill is shared out.  The Landlady does not dispute this situation.

9. In situations where there are several Tenants connected to power by one meter and where the said Tenants are involved in different business, there is bound to be conflicts when determining what each Tenant should pay in contributing to the total bill.  I do not think the Tenant in this case is asking for too much or the impossible when she requests that the meter/power supply be separated so that every Tenant has their own meter.  To achieve this, the Respondent’s consent and active participation is most essential.

10. I have perused the Respondent’s affidavit and I do not find any evidence of the fact that the Tenant has any outstanding power bill.  The Respondent has indeed pointed out in her affidavit that since June 2021, the Tenant has been paying electricity bill in the sum of Kshs 100/-.

11. Consequently, I find that the disconnection of the electricity power to the Tenant’s premises is unreasonable and illegal.  It amounts to an alteration of a service enjoyed by the Tenant in the tenancy.  I have also not found, from the pleadings of the Respondent, any evidence that the Tenant/Applicant has sublet the premises or that she installed an illegal meter.

12. In view of the above findings, I will allow the Tenant’s application dated 25th June 2021 in the following terms;

a. That the Respondent is ordered to make a power meter separation in the suit premises to allow the Tenant/Applicant herein to have his own meter.

b. That the Tenant shall bear the costs of the meter to be installed in her premises as shall be advised by the Kenya Power and Lighting Company Ltd.

c. That pending the power meter separation, the Respondent is hereby ordered to reconnect the Tenant’s electricity power supply.

d. That the Respondent/Landlady is hereby restrained from illegally terminating the tenancy between her and the Tenant/Applicant.

e. The Tenant will have the costs of the application.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered in virtually by Hon Cyprian Mugambi Nguthari this 5th day of November 2021 in the absence of the parties.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL