Kimanzi v Ndambuki [2022] KEBPRT 139 (KLR)

Kimanzi v Ndambuki (Tribunal Case E031 of 2022) [2022] KEBPRT 139 (KLR) (Civ) (10 June 2022) (Ruling)

Neutral citation: [2022] KEBPRT 139 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E031 of 2022

Gakuhi Chege, Vice Chair

June 10, 2022

Between

Sammy Kimanzi

Applicant

and

Esther Ndambuki

Respondent

Ruling

1. The landlord moved this Tribunal vide a motion dated February 10, 2022 seeking to recover Kshs.22,500/- being five (5) months rent arrears at Kshs.4,500/- per month as well as vacant possession of the demised premises known as E-Star Pub located at Bangladesh in Mombasa.

2. The application is supported by the affidavit of the landlord sworn on February 10, 2022 and the grounds on the face thereof. It is the landlord’s case that the tenant is a perpetual rent defaulter, she is rude and arrogant whenever, it comes to rent payment as per annexure ‘SN-1’.

3. On November 5, 2021, the landlord served the tenant with notice to vacate the suit premises as per annexure ‘SN-3’. The tenant did not vacate by February 1, 2022 as per the notice neither did she pay rent due.

4. As a result, the landlord filed the instant proceedings. The rent due by the time of issuance of notice to vacate was for the months of August- November 2021. The grounds cited in the termination notice are that the tenant had defaulted on payment of rent for four months and that she was irregular in payment of rent.

5. The application is opposed through the replying affidavit of the tenant sworn on March 30, 2022 wherein the allegations made against her by the landlord are denied. She states that she has always paid rent including the period when bars had been ordered closed by the government due to Covid-19 pandemic.

6. The tenant deposes that she spent Kshs.20,000/- to renovate the suit premises after receiving notice marked ‘EN-3’ from the County Government of Mombasa Public Health department which ordered replacement of all iron sheets.

7. According to the tenant, the termination notice was the subject matter of Mombasa BPRT No. 003/2022. I have called for the said file and noted that it is a reference filed by the tenant on January 10, 2022 in opposition to the notice to terminate tenancy. No proceedings have been taken in the said case to date and as such I did not believe the landlord when he submitted that the said reference was dismissed. I presume that any such entry in the e-filing portal must have been made in error.

8. The tenant further deposes that the notice issued by the landlord does not conform to the law. She further contends that she undertook renovation of the suit premises which was in bad condition after the landlord failed to do so. The tenant avers that she spent Kshs.250,000/- to set up her business.

9. The landlord filed a supplementary affidavit sworn on May 10, 2022 wherein he reiterates that the tenant was in rent arrears of Kshs.31,500/- By 21st June 2021 when the tenant complained of a leaking roof, the landlord deposes that she was in rent arrears of Kshs.18,000/-.

10. On 18/7/2021, the tenant paid Kshs.10,000/- via Mpesa and another Kshs.3,500/- on the same day to enable the landlord purchase iron sheets and timber for repair of the premises in terms of his annexure ‘SM-2’ .

11. According to the landlord, the renovation claimed to have been done by the tenant involved one piece of timber measuring 10 feet and 7 iron sheets of second degree quality as per annexure ‘sm-3’. No other money had been paid to the landlord.

12. The landlord further deposes that the tenant removed the iron sheet roof without his consent on 2nd November 2021 and replaced it with substandard materials using poor workmanship at an inflated cost. The matter was reported to Mikindani Police Station vide O.B No. 48/02/11/2021 marked annexure ‘IM-4’. The landlord maintains that there was no agreement to do so.

13. From the pleadings filed by both parties, it is clear that the dispute revolves around the question whether the tenant undertook any renovation of the suit premises and if so whether she had consent of the landlord to justify her claim for compensation or set off against the rent account. On the other hand, this court is being called upon to determine whether the notice to terminate tenancy served upon the tenant is valid to warrant the orders of vacant possession sought vide the application dated February 10, 2022.

14. At the start of this case, file no. Mombasa BPRT E003 of 2022 was not availed to me and the matter was initially proceeding turned out in the course of writing this ruling that indeed the tenant had filed a reference opposing the notice of termination of her tenancy. The reference is still pending.

15. In the premises, the orders that commend to me are:-i.The application shall be subsumed for hearing together with the main reference in Mombasa BPRT No. E003 of 2022 which is consolidated with this case.ii.The tenant will serve the landlord will the filed reference within seven (7) days of this ruling and both parties shall file witness statements and list of all documents that shall be relied upon by them during the hearing within Thirty (30) days hereof.iii.The matter shall be mentioned on 8/7/2022 for taking directions on the mode of hearing thereof.iv.The status quo shall be maintained by both parties.v.Costs of the application shall abide the outcome of the reference.vi.Mention notice to issue.It is so ordered.

RULING DATED, SIGNED AND DELIVERED THIS 10TH DAY OF JUNE 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling read in presence of:Tenant present in personNo appearance by Landlord