Kemunto v Wamola [2022] KEBPRT 815 (KLR)

Kemunto v Wamola (Tribunal Case E614 of 2022) [2022] KEBPRT 815 (KLR) (Civ) (2 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 815 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E614 of 2022

Gakuhi Chege, Vice Chair

November 2, 2022

Between

Alice Kemunto

Applicant

and

Dorcas Wamola

Respondent

Ruling

1. The landlord moved this tribunal by a reference dated July 13, 2022 under section 12(4) of Cap 301, Laws of Kenya complaining that the tenant had secretly removed her properties, closed and deserted the business premises since June 2022 contrary to Cap 301, Laws of Kenya.

2. The landlord simultaneously filed a motion dated July 13, 2022 seeking for an order to break into the premises with supervision of the OCS, Matopeni Police Station. She also prays that she be allowed to sell any distrainable goods through an appointed auctioneer to recover rent arrears plus costs of the case.

3. The landlord deposes that the tenant pays Kshs 20,000/- as rent per month. She further deposes that the tenant secretly removed her properties and deserted the premises since June 2022 contrary to Cap 301, Laws of Kenya.

4. The landlord’s efforts to trace the tenant through the office of area chief were in vain as even her phone calls went unanswered. The landlord was thus losing rental income which was her source of livelihood.

5. The tenant opposes the application through a replying affidavit sworn on August 1, 2022 wherein it is admitted that she vacated the suit premises on June 28, 2022 after giving the applicant notice. However, the landlord refused to release the tenant’s franchise goods belonging to Jibuco which include a water tank worth Kshs 48,000/-, water tank tower worth 120,000/- cages worth Kshs 7,500/- and signage worth Kshs 16,000/-.

6. The tenant left a deposit of Kshs 30,000/- for water and electricity which was agreed to be used for repairs (if any). She therefore prays that the application be struck out with costs and the applicant ordered to release her goods.

7. The tenant deposes that she continued to suffer loss on account of withholding of her goods by the landlord.

8. The landlord filed a further affidavit sworn on August 29, 2022 wherein she deposes that the monthly rent for two (2) shops is Kshs 40,000/-. She maintains that the tenant secretly moved out of the premises, closed it and deserted.

9. The landlord states that the tenant has sworn a contradictory affidavit by deposing that she vacated on June 29, 2022 and that her goods were withheld yet she is the who closed the suit premises and the landlord had no access to confirm what was inside.

10. The landlord seeks to recover rent arrears of Kshs 120,000/-, water bill of Kshs 6861. 10 all amounting to Kshs 126,861/- and meet the cost of repairs and damages on the suit premises.

11. The matter was ordered to proceed by way of written submissions and both parties complied.

12. The issues for determination herein are:-a.Whether the landlord is entitled to the reliefs prayed for in the application dated July 13, 2022. b.Whether the tenant should be allowed to pick her properties from the suit premises.c.Who is liable to pay costs?.

13. It is not in dispute that the tenant moved out of the suit premises around June 28, 2022. The landlord however states that the tenant closed the premises and deserted it since June 2022 contrary to their agreement to give notice. However, no agreement is attached to the application.

14. Section 4(2) of Cap 301 compels a landlord who wishes to terminate tenancy or to alter terms and conditions thereof to give notice. No corresponding obligation is given to a tenant who wishes to terminate tenancy under the Act. As such in absence of any tenancy agreement produced by the landlord, I find and hold that the tenant had no obligation to give notice.

15. The properties left behind by the tenant are a water tank worth Kshs 48,000/-, water tank tower worth Kshs 120,000/-, cages worth Kshs 7500/- and signage worth Kshs 16,000/-. These are items that are in ordinary circumstances to be found outside a premises. As such, there cannot be any contradiction for the tenant to claim that they were withheld by the landlord.

16. I have seen the photographs annexed to the landlord’s further affidavit and noted that the suit premises is empty. It is not clear how the landlord took the photographs without accessing the premises. The landlord has not denied the tenant’s claim that she holds the tenant’s deposit of Kshs 30,000/- meant for repairs of the premises to cater for any unpaid water and electricity bills. No assessment report has been exhibited by the landlord to show that the amount is not sufficient for that purpose.

17. Again the alleged water bill of Kshs 6861. 10 has not been attached to the further affidavit neither is the claim made in the application dated July 13, 2022. It is therefore an afterthought which cannot be allowed since a party is bound by his/her own pleadings.

18. The landlord has not tabulated how the alleged rent arrears of Kshs 120,000/- claimed in paragraph 7 of the further affidavit is made up. No specific amount is claimed in the application or the complaint. I am unable to award such a global sum without any pleading in support thereof. I shall therefore deny the claim.

19. The short title to the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya states as follows:-'An Act of parliament to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto'.

20. Given that this tribunal is duty bound to protect tenants from exploitation by landlords, I would be failing in my duty if I allowed a claim of Kshs 120,000/- in unspecified rent arrears against the tenant thereby ending up exposing her to distress of her properties in the suit premises. I shall therefore dismiss the claim.

21. As regards whether the tenant should be allowed to pick her properties from the suit premises, I will answer the issue in her affirmative given what I have stated under issue (a) above. The tenant stated on oath that the said properties were withheld by the landlord. No good reason has been given by the landlord why she should retain the properties. I do not buy the landlord’s argument that the tenant having vacated has not explained how she left behind her properties in the suit premises.

22. If indeed the tenant did not leave behind any properties in the landlord’s premises, what is the landlord seeking to distrain in the application? I believe it is the properties listed in paragraph 4 of the tenant’s replying affidavit. No justification has been made why the same should be distrained by the landlord.

23. As regards costs, the same are in the discretion of the tribunal under section 12(1) (k) of Cap 301 but always follow the event unless for good reasons otherwise ordered. I have no reason to deny the tenant costs of the reference.

24. In conclusion therefore, the following final orders commend to me on both the application and reference dated July 13, 2022:-i.The application dated July 13, 2022 and the reference of even date is hereby dismissed with costs to the tenant/respondent.ii.The tenant is allowed to collect her water tank, water tank tower, cages and signage from the suit premises with assistance of OCS, Matopeni Police station who shall ensure compliance.iii.The sum of Kshs 30,000/- paid to the landlord as deposit shall be used by the landlord to repair the suit premises.iv.The tenant shall be entitled to costs of Kshs 10,000/- for defending the reference against the landlord.It is so ordered.

RULING DATED, SIGNED AND DELIVERED THIS 2ND DAY OF NOVEMBER 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the absence of the parties.