Martin Kaguwe Karithi v Serah Njuguna Kamau, Peter Kamau Wanjiku & Little Vineyards Auctioneers [2021] KEBPRT 482 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

VIEW PRK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 891 OF 2020 (NAIROBI)

MARTIN KAGUWE KARITHI.............................................................................TENANT

VERSUS

SERAH NJUGUNA KAMAU........................................LANDLADY/1ST RESPONDENT

PETER KAMAU WANJIKU................................................................2ND RESPONDENT

LITTLE VINEYARDS AUCTIONEERS..............AUCTIIONEER/3RD RESPONDENT

RULING

By his application dated 1st December 2020, the Tenant has sought in material part for an order to restrain the Landlord from attaching or selling his goods. He further seeks for an order to restrain the Landlady from demanding the monthly rent until she reconnects electricity and water to the premises.

He further prays for the Landlady to reconnect electricity and water immediately.

The application is supported by the Tenant’s affidavit of even date.

According to the Tenant, he paid rent up to March 2020 but no receipts have been issued and no rent card has been prepared for purposes of accurate records.

He contends that the Landlady took advantage of corona pandemic lockdown and started sabotaging his business by disconnecting electricity and water to the premises.

As a result, the business went down and started operating at a loss of Kshs 300,000/- per month.

The Tenant contends that it is unfair for the Landlady to demand the six months rent knowing well she is the one who stopped production by disconnecting electricity power.

On 8th February 2021, the Landlady filed an application dated 5th February 2021 seeking for leave to repossess the suit premises. She also prays that the Tenant be ordered to pay outstanding rent arrears of Kshs 819,500/-.

The application is supported by the Landlady’s affidavit sworn on 5th February 2021.

According to the Landlady, there has been a tenancy agreement between her and the Tenant since January 2018. The agreed monthly rent is Kshs 45,000/- which the Tenant has consistently failed to pay resulting into arrears of Kshs 819,500/-.

The Landlady contends that the Tenant is in wrongful occupation of the premises and that she is entitled in law to re-enter and repossess the suit premises on account of default in payment of rent.

The Landlady therefore prays for an order to compel the Tenant to pay the rent and other sums due and to vacate or be evicted therefrom.

In his replying affidavit filed in court on 22nd February 2021,the Tenant deposes that in the month of August 2020, the Landlady illegally disconnected electricity power supply and in the month of October 2020 sent auctioneers to proclaim and attach his goods and tools of trade.

It is the Tenant’s contention that the Landlady is seeking to evict him and terminate his tenancy without following the law.

On 8th February 2021, directions were taken that both applications be disposed of by way of written submissions. However, only the Tenant has filed submissions. The only issue for determination is whether the Tenant and Landlady are entitled to the reliefs sought in their respective applications.

From the pleadings on record, I wish to observe as follows;

(i) The Tenant has not demonstrated that he has paid rent up to date in respect of the demised premises.

(ii) Indeed, the Tenant admits by implication through paragraph 5 of his replying affidavit that he is in rent arrears from August 2020 to January 2021.

(iii) The Tenant alleges that the Landlady disconnected electricity to the premises without producing any proof of such a serious allegation.

(iv) The date of alleged disconnection of electricity is not given.

(v) The Landlady on the other hand is seeking possession or eviction of the Tenant on grounds of non-payment of rent without exhibiting any notice of termination of the tenancy.

I have considered the Tenant’s application dated 1st December 2020 and I am not persuaded that the reliefs sought are capable of being granted.

I note that although the Tenant claims that his goods and tools of trade have been proclaimed by the Landlady, no evidence of such proclamation have been exhibited.

Equally, whereas the Tenant claims that the Landlady has not provided him with a rent card, such a card is exhibited as annexture SNK 1 to the Landlady’s application dated 5th February 2021.

In view of the foregoing I find no merit in the Tenant’s application and hereby dismiss it with costs to the Landlady.

In regard to the Landlady’s application dated 5th February, 2021, I have observed that there is no notice to terminate tenancy in terms of section 4 of Cap 301, Laws of Kenya. An order for possession or eviction cannot issue in favour of the Landlady in absence of evidence of such a notice.

In the premises, I also dismiss, the Landlady’s application with costs to the Tenant.

In exercise of this court’s inherent jurisdiction, to do justice between the two parties;

It is hereby ordered as follows;

(1) The Tenant shall settle the outstanding rent arrears owing to the Landlady within the next 4 months failing which the Landlady shall be at liberty to levy distress in recovery thereof.

(2) The Landlady shall allow the Tenant continued occupation of the demised premises at the current agreed rent of Kshs 45,000/- per month which shall be payable on or before the 10th day of each calendar month without fail.

(3) As both applications have been dismissed with costs, none of the two antagonists will be entitled to execute for costs.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 9TH DAY OF APRIL 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

09. 04. 2021

Mr. Mwangi for Njoroge for the Tenant present.

Waruiru Karugu for the 1st and 2nd Respondents absent.

Rulingread and delivered virtually by Hon Cyprian Mugambi Nguthari in the presence of Mr Mwangi holding brief for Njoroge for the Applicants and in the absence of counselfor the Respondents.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL