Kiriamburi v Maina & another [2024] KEBPRT 129 (KLR)

Kiriamburi v Maina & another (Tribunal Case E1050 of 2023) [2024] KEBPRT 129 (KLR) (19 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 129 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1050 of 2023

P May, Member

January 19, 2024

Between

Vinius Kiriamburi

Tenant

and

Samuel Githinji Maina

1st Landlord

Brian Morgan Mwangi

2nd Landlord

Ruling

1. The tenant filed an application by way of certificate dated September 24, 2023 seeking for an order of temporary injunction against the respondents. The application was premised on the grounds set out on the face of the application and the further grounds enumerated in the supporting affidavit sworn an even date. The tenant stated that they had entered into a lease agreement with the respondents for a term of 5 years. They were therefore taken aback when the landlord orally told them to vacate the premises. This prompted the tenant to commence the present proceedings.

2. The application was placed before the Tribunal on 25/10/2023 whereby interim orders were made in favour of the tenant pending the inter partes hearing. The landlords upon being served with the application, entered appearance and filed the application dated November 16, 2023 seeking for the setting aside of the orders issued by the Tribunal as there did not exist a landlord and tenant relationship. They stated that if the orders were allowed to subsist, the same would amount to the them being dispossessed irregularly hence the urgency. The landlords sought for an order of eviction against the tenant under the supervision of the police.

3. The landlord averred that the lease agreement which the tenant had annexed was a product of forgery and they had lodged a report with the police against the same. They therefore denied ever entering into any lease agreement with the tenant.

4. The parties elected to canvass the application by way of written submissions. I have considered the application, the responses thereto and the written submissions on record and would proceed as follows:

5. The gist of the present dispute is two-fold whether there exists a landlord and tenant relationship and whether the tenancy was terminated in a proper manner. The landlords herein disputed the existence of the tenancy relationship. They stated that they have never entered into any lease with the tenant.

6. The rule of evidence is clear that “He who alleges must prove”. This maxim has been grounded in law under section 107 of the law of Evidence. The same was enunciated by Justice Majanja in Evans Otieno Nyakwana v Cleophas Bwana Ongaro [2015]eKLR when he said that:“…As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107 (1) of the Evidence Act (Chapter 80 of the Law of Kenya), which provides:“107. (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist…”

7. The landlords annexed a police OB No of the report they made against the tenant. The burden of proof thereafter shifted to the tenant who was supposed to tender documentary evidence such as receipts and proof of payment of rent. No documentary evidence has been produced to disprove the landlords’ assertations. In the circumstances, the Tribunal arrives at a conclusion that the landlords have proven that there did not exist a landlord and tenant relationship between the parties herein. The Tribunal is therefore divested of the requisite jurisdiction and will have to down its tools.

8. In the end, the landlord’s application dated November 16, 2023 is allowed in terms of prayers 2, 3 and 4 with costs assessed at Kshs. 50,000 awarded to the landlord.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF JANUARY 2024. HON. PATRICIA MAYMEMBER19. 01. 2024In the presence of;Mr. Ndungo for the Applicant/TenantMr. Rango together with Amunai for the 1st Respondent