Kimani v Muriithi [2025] KEBPRT 27 (KLR)

Kimani v Muriithi (Tribunal Case E762 of 2024) [2025] KEBPRT 27 (KLR) (17 January 2025) (Ruling)

Neutral citation: [2025] KEBPRT 27 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E762 of 2024

CN Mugambi, Chair

January 17, 2025

Between

John Kimani

Landlord

and

Lucy Njeri Muriithi

Tenant

Ruling

1. The Landlord’s Application dated 29. 10. 2024 seeks the following;-a.That the Tenant be compelled to pay all the outstanding rent arrears.b.That the Tenant be restrained from selling alcohol or from in any manner interfering with her tenancy pending the hearing of the Application.c.That an eviction order be issued against the Tenant for being in breach of the tenancy agreement dated 30. 7.2022. d.Costs.

2. The Application is supported by the Landlord’s affidavit sworn on 29. 10. 2024 wherein it has been deponed that the Landlord entered into a tenancy agreement with the Tenant on 30. 7.2022 for Shop No.1 wherein the Tenant operates a wines and spirits shop known as the Lift Liquor Store.

3. The Landlord has also deponed:a.That the Tenant is a habitual rent defaulter and now owes rent in the sum of Kshs. 90,000/=.b.That the Tenant is a nuisance and has turned her liquor store to a bar contrary to Clause (c) of the lease agreement.c.That the Tribunal should issue an eviction order to the Tenant.d.That the Tenant has breached the terms of her tenancy agreement.e.That the Landlord has demanded for the rent by sending a demand letter to the Tenant.

4. The Tenant has not filed any responses to the Landlord’s affidavit and therefore the Application by the Landlord is unopposed.

5. The Landlord’s claim that the Tenant is in rent arrears amounting to Kshs. 90,000/= has also not been oppose. I am satisfied on a balance of probabilities that the said rent is arising from the Tenant to the Landlord.

6. The Landlord has sought the orders restraining the Tenant from being a nuisance; and specifically sought an order that the Tenant be restrained from selling alcohol. The Landlord’s claim is that the Tenant has turned the wines and spirits shop into a bar contrary to Clause “t” of the tenancy agreement. The said Clause (“5t” actually), is in the following terms;“the tenant shall ensure quiet living and not to be of nuisance to neighbours. This mainly by keeping music instruments at reasonable low levels not to cause annoyance to other tenants and the general public.”

7. Clause “5t does not prohibit the Tenant from selling alcohol neither does the lease agreement provide for the manner in which the Tenant may sell alcoholic beverages. Further, from the photographs annexed to the Affidavit, it is not possible to tell whether the Tenant is indeed operating a wines and spirits shop or a bar. I am unable therefore to grant the Landlord this prayer.

8. The Applicant has sought for orders of eviction against the Tenant on the basis that the Tenant has breached the tenancy agreement. The Landlord is required under the provisions of Section 4(2) of Cap 301, to serve the Tenant with a notice to terminate tenancy if the Landlord desires to terminate the said tenancy. the orders of eviction cannot issue against a Tenant absent a notice to terminate tenancy. What the Landlord has done in this matter is to file a Complaint under Section 12(4) of Cap 301. The said Complaint only addresses itself to the Tenant’s failure to pay rent and being a nuisance to the other Tenants or neighbours. But even if the Complaint had sought an order for eviction, the Tribunal would still not issue the same for the same reasons advanced hereinabove.

9. In disposing of this matter, I will therefore make the following orders:-a.That the Tenant is to clear the rent arrears up to date within the next thirty (30) days of this Ruling.b.That the Tenant failing to clear the rent arrears as ordered, the Landlord will be at liberty to levy distress for the said rent with the assistance of a licensed auctioneer.c.The Landlord’s Complaint is allowed in the above terms.d.The Tenant will bear the costs of the Application and the Complaint.e.This file is ordered closed.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF JANUARY, 2025. HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Ms. Wambui for the Landlord and in the absence of the Tenant