Kiema v Mulwa [2022] KEBPRT 750 (KLR)

Kiema v Mulwa (Tribunal Case 615 of 2020) [2022] KEBPRT 750 (KLR) (15 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 750 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 615 of 2020

Andrew Muma, Vice Chair

September 15, 2022

Between

Benard Mutua Kiema

Tenant

and

Berita Mulwa

Landlord

Ruling

1. On June 11, 2020, the Tenant moved this Tribunal by way of a notice of motion under certificate of urgency under section 12(4) of theLandlords and Tenants (Shops, Hotels and Catering) Establishments ActCap 301. The Tenant was seeking amongst other orders that pending the hearing and determination of the application that the tribunal order the Landlord and its agents be jointly and severally restrained from evicting, levying distress, harassing, removing , increasing rent or interfering with the Applicant’s peaceful enjoyment of the premises. The Tenant also sought seeking refund of KShs.210,000. 00 used to renovate the premises and orders that the respondent be compelled to provide water and electricity to the Tenant. Lastly, the Tenant prayed that the Officer Commanding Station-Huruma Police Station to oversee the implementation of those orders.

2. On July 3, 2020, the Tribunal ordered that the Landlord provide water and electricity to the Tenant.

3. On July 14, 2020, the Landlord moved this Tribunal vide a notice of motion under certificate of urgency seeking that the order dated July 3, 2020 be set aside and/or stayed pending the hearing and determination of the suit. Additionally, the Landlord prayed for orders compelling the Tenant to pay all outstanding rent arrears the default of which the Landlord should be allowed to levy for distress of rent. Lastly, the Landlord prayed that the Officer Commanding Station-Huruma Police Station to oversee the implementation of those orders.

4. On December 2, 2020, the Tenant yet again filed a notice of motion application under certificate of urgency seeking orders similar to the June 11, 2020 application and additional orders to stop rent increase from Kshs 12,500. 00 to Kshs 15,000. 00 and the Landlord to be restrained from locking and/or letting out the premises. The Tenant also prayed for orders that they deposit rent with the Tribunal and that they be allowed un-limited access to the suit premises. The prayers were granted on December 14, 2020 and the rent increase stopped.

5. On December 14, 2020, the Tribunal granted orders compelling the Landlady to provide water and electricity to the Tenant’s premises in default of which the Tenant can provide those services and deduct costs from future rent. The Tribunal restrained the Landlady from increasing rent from Kshs 12,500. 00 to Kshs 15,000. 00 pending the hearing and determination of the case.

6. The applications were dealt with and the Tribunal gave a ruling dated January 21, 2022 where it concluded that the rent due was Kshs.12,500. 00 as per the Tenancy agreement. The Tribunal also ordered the Tenant to keep paying the rent per month, in default of which the Landlord would levy for distress of rent.

7. Accordingly, I place reliance on my previous ruling. The Landlady has claimed that she evicted the Tenant on May 8, 2022 after he accrued 3 months arrears. As such, she went on to exercise her rights in accordance with the ruling and thus, removed the Tenant’s goods and rented out the premises to a third party.

8. Additionally, the fact that the premises has now been rented out to a third party means that there is no tenancy relationship in existence between the parties. The foundation of its jurisdiction is an existing tenancy relationship which cannot be established thus, divests off jurisdiction from this Tribunal. Accordingly, we have no other recourse but to down our tools.

9. For this reason, the Tenant’s application is dismissed with costs.

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 15TH DAY OF SEPTEMBER, 2022 IN THE ABSENCE OF THE PARTIES.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL