Kibe (Bekira Enterprises) & another v Kihara t/a Kongo Kihara Foundation [2024] KEBPRT 67 (KLR)

Kibe (Bekira Enterprises) & another v Kihara t/a Kongo Kihara Foundation (Tribunal Case E125 of 2023) [2024] KEBPRT 67 (KLR) (18 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 67 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E125 of 2023

Andrew Muma, Ag. Chair & J Rop, Member

January 18, 2024

Between

Joel Kibe (Bekira Enterprises)

Landlord

and

Anthony Macharia

Applicant

and

Jeremiah Kongo Kihara T/A Kongo Kihara Foundation

Tenant

Ruling

A. Parties And Their Representatives 1. The Applicant, Joel Kibe is the Landlord of the suit premises known as Thika No. 12 Plot No. 4951/5/IV Sawa House.

2. The 2nd applicant is the Property Manager and acts under the authority of the 1st Applicant.

3. The Applicants appear in person in this matter.

4. The Respondent Jeremiah Kongo Kihara T/A Kongo Kihara Foundation is the Tenant and rented out space on the suit premises.

5. The Firm of M/S Kanyi Kiruchi & Company Advocates represents the Tenant in this matter.

B. Background of The Dispute 6. On 11th August 2023, the Court Ordered Parties to file updated statements of account inclusive of KShs. 20,000. 00 awarded to the Tenant as Costs in a Ruling of the Court dated 28th December 2022 and the period for which electricity was disconnected.

7. Further, the Court Ordered that a site visit be conducted in the presence of both Parties to ascertain whether the Tenant was still in occupation of the premises.

8. Accordingly, the Tenant filed a Further Affidavit dated 30th May 2023 and the Landlord filed a reply to the Tenant’s Affidavit dated 7th September 2023

C. Tenant’s Case 9. The Tenant avers that he is not in rent arrears and that the only time he was not able to use the office was between the month of June and November when the Landlord illegally disconnected electricity, within which period the Court suspended rent vide an Order dated 7th June 2022.

10. The Tenant has attached a statement of account demonstrating that he is not in arrears and that he has paid rent up to the month of June 2024.

D. Landlord’s Case 11. The Landlord avers that the statement of account filed by the Tenant is incorrect for the reason that as at 5th April 2023, the Tenant was in arrears of KShs. 90,000. 00 with the last monthly payment having been paid on 13th April 2022.

12. It is the Landlord’s case is that the Court ordered the Tenant to pay KShs. 40,000. 00 on or before the 30th April 2023. Subsequently, the Tenant paid KShs. 50,000. 00 which the Landlord used to offset the rent arrears owing from August 2021 to May 2022 with a balance of KShs. 40,000. 00 outstanding.

E. Issues for Determination 13. I have carefully considered all documents filed and evidence adduced before this Court. It is my considered opinion that two issues fall for determination:i.Whether the Tenant is in arrears; andii.Whether the Tenant is in occupation of the suit premises.

F. Analysis and The Law i. Whether the Tenant is in rent arrears 14. I have taken time to peruse and analyze the statement of account of both the tenant and the Landlord. I note that out of the KShs. 90,000. 00 owing as at 5th April 2023, the Tenant made a payment of KShs. 50,000. 00 which the Landlord receipted on 4th May 2023 and applied the same to pay the outstanding arrears for the months between August 2021 and May 2022.

15. Although the Tenant claims to have made rent payments on 15th October 2021, 10th November 2021, 18th January 2022 and 13th April 2022 to cater for the outstanding rent for the months between August 2021 and May 2022, the Tenant has not produced any receipts or proof to show that the said payments were made.

16. In fact, save for the statement of account and a letter of acknowledgement from the Landlord for a payment of KShs. 20,000. 00 in his affidavit dated 6th September 2023, paid in compliance of the Court’s Order dated 11th August 2023, the Tenant has not attached any other material to prove that he has cleared the rent arrears owing.

17. Therefore, I am inclined to rely on the receipts produced by the Landlord demonstrating that the amounts paid on the various dates as indicated in their statement were applied in clearing the rent arrears as follows:

18. That the sum of KShs. 50,000. 00 paid by the Tenant in compliance of the Court’s Order dated 5th April 2023 were applied to clear arrears of the months between August 2021 to May 2022.

19. I take note that the Tenant was exempted from paying the rent for the months of June 2022 to September 2022 due to the Landlord’s non-compliance with the Court’s Order dated 7th June 2022 to reconnect electricity.

20. The Tenant further paid KShs. 20,000. 00 in compliance with the Order of the Court dated 11th August 2023 which catered for the rent for the months between October 2022 and January 2023.

21. Additionally, the Court awarded the Tenant Costs of KShs. 20,000. 00 vide a Ruling in Tribunal Case No. E211 of 2022 delivered on 28th December 2022 and directed that the same be deducted from the rent payable by the Tenant. Accordingly, this amount catered for the rent for the months between February 2023 and May 2023.

22. On 6th October 2023, the Tenant made a further payment of KShs. 10,000. 00 which then goes to the rent for the months of June and July 2023 There is no proof of payment of rent from August 2023 to December 2023 which makes the outstanding rent arrears KShs. 25,000. 00.

ii. Whether the Tenant is in occupation of the Premises 23. I have carefully perused the site inspection report conducted in the presence of both parties by Edwin Chemuor on 6th October 2023. The report indicates that the suit premises was open, that the Tenant was in the premises with one employee and that the Tenant’s items are still in the suit premises.

24. However, this Tribunal is convinced that the Tenant only opened the premises for purposes of inspection. It appears he is no longer in business for the reason that no goods and customers were in the premises at the time of inspection.

25. I note that the said report, the Landlord states that the lease has already expired and needs to move in while the Tenant indicates his willingness to vacate without any harassment from the Landlord.

G. ORDERS 26. The upshot is that the Landlord’s Reference and Notice of Motion Application dated 3rd January 2023 is allowed in the following terms:a.The Tenant to pay rent arrears of KShs. 25,000. 00 on or before 31st January 2024. b.Failure to which the Landlord shall be at liberty to take back vacant possession without Blocking or interfering with the Tenants moving out andc.with the assistance of OCS Thika who shall ensure compliance.d.Each party to bear their own costs.

HON. A. MUMAAG CHAIR/MEMBERHON JACKSON ROPMEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, DELIVERED AND SIGNED AT NAIROBI ON THIS 18TH DAY OF JANUARY 2024 IN THE PRESENCE OF THE PROPERTY MANAGER IN PERSON ON BEHALF OF THE LANDLORD AND SELF, NO APPEARANCE FOR THE TENANT.HON. A. MUMACHAIR/MEMBERHON JACKSON ROPMEMBERBUSINESS PREMISES RENT TRIBUNAL