Kai v Ngolo [2025] KEBPRT 317 (KLR)

Kai v Ngolo (Tribunal Case E119 of 2025) [2025] KEBPRT 317 (KLR) (20 June 2025) (Ruling)

Neutral citation: [2025] KEBPRT 317 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E119 of 2025

N Wahome, Chair & Joyce Murigi, Member

June 20, 2025

Between

Thomas Chula Kai

Tenant

and

Martin Kafani Ngolo

Landlord

Ruling

1. This Ruling is on the Tenant’s notice of motion application dated 24/4/2024 which primarily sought that:-i.The landlord be ordered to re-open the premises and give free access thereof to the Tenant and in default the Tenant to break-in and regain possession with the assistance of the OCS Mutwapa Police Station.ii.The landlord be restrained from evicting, threatening, disturbing, victimizing, intimidation or in any other way interfering with the Tenants quiet possession of the premises.iii.That Landlord be compelled to compensate the Tenant for the spoiled goods worth Kshs.61,230 and for the loss of profit at Kshs.11,230 per day.iv.The Tenant be exempted from paying rent for the duration that the premises were closed.v.All ensuing orders be enforced by the OCS Mutwapa Police Station and for costs of the suit.

2. The motion above was founded on the reference of the even date and which sought for similar orders as those sought in the said motion. The evidence of the Tenant is that:-i.He has been a Tenant of the Landlord since 18/2/2023 and that he had been faithfully paying the monthly rent at Kshs.10,000/-.ii.On the 15/4/2025, the landlord without any reason nor justification stormed his business premises and closed the same down.iii.In the process, the Tenant lost his stock worth Kshs.61,230/- and daily income of 11,230 during the period the premises were closed.iv.He had carried out renovations on the premises at a cost of Kshs.78,546 which had surpassed the alleged rent on arrears at Kshs.70,000/-.

3. The Tenant therefore sought for the reliefs as appears on the face of the motion dated 24/4/2025.

4. On his part, the landlord filed the replying affidavit sworn on the 7/5/2025 and his evidence is that:-i.Though the Tenancy agreement is dated 14/2/2023, the same took effect on the 18/2/2023. ii.The Tenant was in rent arrears for seven (7) months at the total sum of Kshs.70,000/- and that he has been a serial rent defaulter.iii.He had not authorized the Tenant to carry out any renovations on the premises and the same If at all were illegal.iv.He locked up the premises after persistent demands for payment of rent were ignored.v.No goods were lost by the Tenant as an inventory of the goods then at the premises were signed for by the Tenant’s own employee namely Florence Mumbe (Annexture MKN-2).

5. The landlord therefore sought that the Tenants application be dismissed and that his counter-claim be allowed. We appreciate that though the counter-claim is not mature for our determination. This court made an order on the 30/5/2025 to the effect that:-“The Tenant shall settle all the rents in arrears before the next date to court”.

6. In view of the order above the counter-claim dated 19/5/2025 is spent and the Tenant shall be at liberty to prosecute his claim for compensation for the allegedly lost items and for loss of business.

7. Having perused the parties pleadings, it is in our view that the issues that arise for determination are the following:-a.Whether the Tenant’s application dated 24/4/2025 has merit?b.Who should bear the costs of this application.

8. On whether the Tenant’s application has merit, it is not in dispute that the landlord when in plain breach of the Act and without any authority of this court, did lock down the Tenant’s premises. That action on its own allows this court to grant an order to restrain the Landlord from any interference with the Tenant’s quiet possession of the demised premises.

9. In the case of Robert Mugo was Karage -vs- Eco Bank (Kenya) Limited and Another (2019) eKLR the court in the same circumstances held that:-“Circumstances for consideration before granting a temporary injunction under Section 40 Rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree or that the defendant threatens or intends to remove or dispose the property, the court in such situation is enjoined to grant a temporary injunction to restrain such acts….”.

10. On the question of costs, we appreciate that the Tenant was in huge rent arrears when the premises were closed down by the landlord. We also find that the Landlord had no justification to take that action. We would therefore direct that each party bear own costs.

11. In the final analysis, the orders that commend to us are the following,-i.That the application dated 24/4/2025 is allowed in terms that the Tenant shall be allowed complete quiet possession of the demised premises pending the hearing and determination of the reference herein.ii.That the Tenant shall have settled all the rents in arrears at Kshs.70,000/- before the date of this Ruling and in default the landlord to levy distress in recovery thereof with the assistance of the OCS Mtwapa Police Station at the Tenant’s expense.iii.That each party shall bear own costs of this application.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF JUNE 2025. HON. NDEGWA WAHOME, MBS - CHAIRPERSONHON. JOYCE MURIGI - MEMBERBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of M/S Apiyo holding brief for M/S Omollo for the Landlord/Respondent and in the absence of the Tenant.