Mariam Shennah Omar v Moses Mmata [2021] KEBPRT 51 (KLR)

Full Case Text

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 273 OF 2020 (MOMBASA)

MARIAM SHENNAH OMAR....................................................APPLICANT/TENANT

VERSUS

MOSES MMATA............................................................... RESPONDENT/LANDLORD

JUDGMENT

1. The landlord herein issued a tenancy notice dated 23rd November 2020 seeking to increase rent from Kshs.2500/- per month to Kshs.7000/- per month on the ground that the current rent is too minimal and the premises fetch the proposed new rent in an open market.

2. The Tenant filed a reference in objection to the said notice which proceeded viva voce with the Landlord beginning.

3. It is the landlord’s case that in 2020, he informed the tenant that he wished to increase rent but she refused. She has been a tenant therein since 2015.

4. In 2016, the landlord expanded the house but the tenant refused to increase rent. She runs a hardware shop therein.

5. According to the landlord, the cost of living has gone up and the premises are currently larger in size than they were at the beginning of the tenancy.

6. The landlord testified that he was basing the increment on the ground that single rooms attract a rent of Kshs.3000/- and the premises occupied by the tenant was a double room which ought to attract more rent.

7. He produced documentary evidence of the amount collected from the other rooms within the same building as P. Exhibit 1.

8. The house is connected with water and electricity which services are included in the rent paid.

9. The tenant testified and confirmed that she pays Kshs. 2500/- for the occupied premises. She entered into the initial tenancy agreement in 2014 and in 2015 moved to a bigger room at the same rent.

10. The premises measures 8x10 feet with an additional room used as a store measuring the same size.

11. The tenant confirmed that she has paid rent of Kshs.2500/- since 2015 which is a cumulative period of 6 years. She was opposed to the increment as the landlord originally intended to increase rent to Kshs.6000/- but later served notice of Kshs.7000/-.

12. The tenant complains that there was no consultation between her and the landlord or his agents. She further stated that the landlord disconnected electricity and the house had no water.

13. She testified that the premises was small and requested for inspection by the Tribunal. She also wanted to be supplied with the building plan.

14. In cross examination, the tenant stated that the premises was given to her by the landlord’s father but the lease is in the name of the landlord.

15. She testified further that the toilet had been closed, water and electricity disconnected. She said that she was agreeable to pay Kshs.4000/-.

16. I am now required to determine the following issues:-

(a) Whether to uphold or reject the tenancy notice dated 23rd November 2020.

(b) Who is liable to pay costs of the suit?

17. I have looked at the evidence and documents produced in this matter and the main ground cited by the landlord for the proposed increment is that the market rent for a single room in the same locality is Kshs.3000/- per month. He produced documents to prove the same.

18. Save that the tenant stated that water and electricity for the premises had been disconnected, no complaint had been filed before this Tribunal by her in that regard.

19. I have looked at the documents produced by the landlord which shows that a single room fetches Kshs.3000/- per month within the same building.

20. The tenant has admitted that she occupies two such rooms where she runs a hardware since 2015. No increment of rent has taken place since 2015 despite occupying the larger room.

21. Granted the incidence of inflation and the time span since the date of occupation of the premises, the proposal to increase rent to current market rate is reasonable.

22. If one (1) room goes for Kshs.3000/- within the same building, it would therefore mean that a double room would go for Kshs.6000/- and not Kshs.7000/- as proposed.

23. As regards the effective date, I shall be guided by the decision in the case of Mohamed Noor and 23 Others – vs- Seif Binsaid Properties Ltd (2020) eKLR and Birindelli Sighns Ltd – vs- The Pioneer General Assurance Society (2007) eKLR in setting the same from the date expressed therein being 1st February 2021.

24. In the premises, I make the following final orders:-

(a) The Tenant’s reference is hereby dismissed.

(b) The landlord’s notice dated 23rd November 2020 is hereby upheld with variation that the new rent shall be Kshs.6000/- with effect from 1st February 2021.

It is so ordered.

DATED, SIGNED & DELIVERED THIS 21ST DAY OF OCTOBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Tenant in person

No appearance for the landlord.