Kihiu v Kangethe [2022] KEBPRT 662 (KLR)

Kihiu v Kangethe (Tribunal Case E034 of 2021) [2022] KEBPRT 662 (KLR) (Civ) (12 August 2022) (Ruling)

Neutral citation: [2022] KEBPRT 662 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E034 of 2021

Gakuhi Chege, Vice Chair

August 12, 2022

Between

Daniel Kihiu

Applicant

and

Henry Kimani Kangethe

Respondent

Ruling

1. The tenant moved this tribunal under section 12 (4) of cap 301, laws of Kenya by a reference dated September 23, 2021 wherein he complains that the respondent locked his business premises on September 12, 2021 without giving any substantial reasons whereas there was no outstanding rent arrears.

2. The tenant simultaneously filed a motion dated September 23, 2021 seeking various reliefs. Prayers (a), (b) and (f) were grantedex-parte on September 27, 2021 and I am now required to consider prayers (d), (e ) and (g) thereof.

3. Under prayer (d), the tenant seeks for compensation against the respondent for any damaged/lost goods that were thrown out of the suit premises.

4. The tenant further seeks for an order of refund of Kshs13,050/- that got lost from the counter during illegal eviction of his employee by the respondent.

5. The final prayer is for costs of the proceedings.

6. The application is supported by the tenant’s affidavit sworn on September 23, 2021 wherein it is deposed that the suit premises are situate within Muranga Town and the reserved monthly rent is Kshs5400/- exclusive of services i.e water and electricity.

7. The respondent is accused of locking the suit premises on September 11, 2021 despite the tenant having no arrears. The respondent is also accused of gaining forceful entry of the premises and throwing out some of the tenant’s business items, destroying part of the stock and as a result a sum of Kshs13,050/- being the previous night’s sales got lost. He thereafter locked the premises.

8. The application is opposed through a replying affidavit of the respondent sworn on November 8, 2021 wherein it is deposed that he does not own any business premises.

9. He denies closing the alleged business premises belonging to the tenant. He further states that he does not live in Muranga but lives in Nakuru county and the applicant was unknown to him.

10. According to the respondent, no evidence has been tendered to support the claim for damaged/lost goods andKshs 13,050/- allegedly lost during the forceful entry moreso because the allegations are of a criminal nature yet no report was made to the police for investigations and prosecution.

11. The suit premises according to the respondent is not identified by the tenant in his pleadings and the orders sought are in remand unenforceable.

12. The tenant filed a supplementary affidavit sworn on November 24, 2021 stating that he had been paying rent to the respondent until September 2021 when he closed the premises.

13. He exhibits as annexure ‘DG-1’ an agreement entered into with the respondent on April 14, 2017 wherein the monthly rent was agreed at Kshs 4000/- which was later increased to Kshs 5,400/-.

14. As such, the tenant contends that the respondent was the owner of the suit premises. The respondent is accused of evicting the tenant and in the process of eviction, his goods were destroyed and/or lost including Kshs 13,050/- being sales for previous night.

15. The tenant deposes that he lost the following goods in the process of eviction:-(a)TV- 32 inch worthKshs 21,500/-.(b)KEG Pump Serial no 0733 worthKshs 40,000/-.(c)DVD Sony worth Kshs5,400/-.(d)Empty cylinders of keg beer worth Kshs 16,000/-.

16. The tenant further deposes that he was operating a bar business in the name of Starehe bar within Jasho trading centre, Muranga county in a plot owned by the respondent having entered into a rental agreement.

17. On March 23, 2022, this tribunal directed its rent inspector to visit the suit premises for purposes of establishing whether the tenant was still in occupation thereof and file a report herein.

18. The said visit took place on April 26, 2022 and a report of the rent inspector is on record. It was found that the suit premises were closed with no business going on by the time of the visit. The room used as a bar was accessed through the back door and had only one padlock whose keys were retained by the landlord’s brother. It was found to be dirty and inoperational for sometime. The water taps were dry. There were 4 benches that are very old and broken which were claimed to belong to the respondent’s late father. The roof was noted to be falling off. The room is dirty.

19. In the second room were 4 benches claimed by both parties. Two rooms at the back which were claimed to be the tenant’s store and employees’ accommodation room were empty.

20. The brother to the landlord upon interview said that he was informed that the tenant removed his belongings after obtaining a break-in order with the OCS, Kihumbuini and left the premises open. The room was closed three weeks after that by the said brother. A new tenant was given a tenancy agreement by name Emma Nyambura Gitau who was unable to occupy the suit premises due to a huge electricity bill of Kshs16,657/- left behind by the tenant. The information was corroborated by two neighbours.

21. The tenant upon interview confirmed having used the court order issued herein to break into the suit premises with the assistance of OCS Kihumbuini but claimed never to have gone back to check on his premises and confirmed that the padlocks on the premises were not his. Some neighbours claimed to have been required to keep some items for the tenant after he removed them from the suit premises.

22. It is therefore clear from the said report that the tenant used the court order given on January 3, 2022 to break into the premises and remove his properties therefrom thereby ousting the jurisdiction of this tribunal as there is no longer any landlord/tenant relationship to warrant further engagement of the tribunal.

23. This kind of conduct is akin to abuse of court process and the tenant cannot be allowed to benefit from his own wrong in line with the decision in the case of Kenya Airways Limited v Satwant Singh Flora [2013] eKLR.

24. In the premises, the final orders that commend to me are:-(i)The application dated September 23, 2021 and reference of even date is dismissed with costs.(ii)The interim orders issued herein in favour of the tenant are hereby set aside or discharged.(iii)The respondents costs are assessed at Kshs 25,000/- against the tenant.It is so ordered.

RULING SIGNED & VIRTUALLY DELIVERED THIS 12TH DAY OF AUGUST 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:-Maina for Landlord.Tenant present in person.