Magondu & 2 others v Wanjiku & another [2022] KEBPRT 797 (KLR)

Magondu & 2 others v Wanjiku & another (Tribunal Case E044 of 2022) [2022] KEBPRT 797 (KLR) (3 October 2022) (Ruling)

Neutral citation: [2022] KEBPRT 797 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E044 of 2022

Gakuhi Chege, Vice Chair

October 3, 2022

Between

David Githaka Magondu

1st Applicant

Julius Kerimi

2nd Applicant

John Mwangi

3rd Applicant

and

Milliam Wanjiku

1st Respondent

Marite Enterprises

2nd Respondent

Ruling

1. Through a reference brought under section 12(4) of cap 301 dated April 12, 2022, the tenants moved this tribunal complaining that the landlord had served them with a notice to increase rent from Kshs 7000/- to Kshs 8000/- in the month of January 2022 and had threatened to increase it to Kshs 9000/- by June 2022 without doing any improvements to the premises for more than ten (10) years.

2. They seek that the notice to increase rent be declared null and void as it will greatly affect their businesses should it be allowed to stand.

3. The tenants simultaneously filed a motion of even date seeking that the respondent’s notice to increase rent be nullified and that they be allowed to continue to operate their businesses by paying their normal rent of Kshs 8000/- per month until the matter is heard and determined. They further seek that the premises be assessed for standard rent and that the respondent be restrained from interfering with their tenancy.

4. Interim orders were granted on April 14, 2022 pending hearing inter-partes on May 10, 2022. On the said date, the respondents were granted 14 days to file and serve their response to the application and the matter was therefore adjourned to June 21, 2022 for hearing. On June 21, 2022, the parties were directed to engage professional valuers for purposes of assessment of the rent payable in respect of the suit premises and file their reports within thirty (30) days thereof. The matter was therefore set down for mention on August 4, 2022 to confirm compliance.

5. By August 4, 2022, only the landlord had filed the valuation report marked annexure ‘MW-2’ attached to the replying affidavit. The matter was therefore set down for ruling based on the materials on record.

6. The issues for determination in this matter are:-(a)Whether the tenants are entitled to the reliefs claimed in the instant suit.(b)Who is liable to pay costs?

7. The tenants contend that they were served with notice to increase rent from Kshs 7000/- to Kshs 8000/- without the landlord making improvements to the suit premises. The notice is attached to the supporting affidavit of David Githaka Magondu sworn on April 12, 2022. They seek that the notice be nullified and the respondent ordered to refrain from any form of harassment.

8. In a further affidavit sworn on July 6, 2022, the 1st applicant deposes that he was agreeable to the rent increment of a sum of Kshs 2000/- from Kshs 7000/- to Kshs 9000/-. He seeks a grace period of 12 months to be able to pay Kshs 8000/- as the business he is doing in the premises is not doing well.

9. He deposes that he was unable to undertake valuation as he could not afford the fees payable due to his financial position. He states that increment of rent to Kshs 9000/- would prejudice him as he was struggling to raise the sum of Kshs 8000/-.

10. On the other hand, the landlord opposes the application on the grounds that all rent adjustments effected in the past always took into account inflation and value of money as particularized in paragraph 5 of the replying affidavit. The current increment is expressed to be from Kshs 7000/- to Kshs 9000/-.

11. The last increment was made in March 2016 from Kshs 6000/- to Kshs 7000- and that the current increment was in conformity with section 4(2) of cap 301, Laws of Kenya. The tenancy notices are marked ‘MW-1’ (a)-(c ) dated November 5, 2021.

12. The tenants did not notify the landlord that they were not willing to comply with the notice as required under section 4(5) of cap 301 and they have not filed any valuation report to controvert the proposed increment. The landlord’s report is marked ‘MW-2’ which shows that the rental values of the business premises occupied by the tenants are Kshs 19,600/- Kshs 16900/- and 16,900/- for the 1st, 2nd and 3rd applicants respectively.

13. The tenants did not present their independent valuation report to contradict the figures contained in the landlord’s valuers report. The proposed rent increment is lower than the market rent contained in the valuation report presented by the landlord.

14. I also note that the tenants did not file a reference as stipulated under section 6(1) of cap 301, laws of Kenya and as such the notices took effect in line with section 10 of the Act on January 1, 2022.

15. In the premises, the tenants are not entitled to the reliefs claimed in the suit having failed to comply with provisions of section 4(5) and 6(1) of cap 301 laws of Kenya.

16. As regards costs, the same are in the tribunal’s discretion under section 12(1) (k) of cap 301 but always follow the event unless otherwise ordered for good reasons. I have no reason to deny the landlord and his co-respondent costs.

17. In conclusion, therefore, the final orders which commend to me under section 12(4) of cap 301, are:-(i)The tenants’ reference and application dated April 12, 2022 is dismissed with costs.(ii)The landlord’s notice of increment of rent dated November 5, 2022 is hereby upheld and the tenants’ rent per month is confirmed to be Kshs 9000/- with effect from January 1, 2022 as expressed therein.(iii)The tenants will pay the accrued arrears within the next thirty (30) days hereof failing which the landlord shall be at liberty to use lawful means to recover the same.(iv)The respondents’ costs are assessed at Kshs 20,000/- all inclusive against the tenants jointly and/or severally.It is so ordered.

RULING DATED, SIGNED AND VIRTUALLY DELIVERED THIS 3RD DAY OF OCTOBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the absence of the parties.