Mary Wambui & Shem Okero vJogrespa Agencies, Naboth Odero, Rinah Khavugwi Ochieng & Base Auctioneers [2021] KEBPRT 157 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 846 OF 2020

MARY WAMBUI………..………...........…………………………TENANT/1ST APPLICANT

SHEM OKERO....…………………………..…………….………TENANT/2ND APPLICANT

VERSUS

JOGRESPA AGENCIES………………………….…….………1ST RESPONDENT/AGENT

NABOTH ODERO……………………………….....…….2ND RESPONDENT/LANDLORD

RINAH KHAVUGWI OCHIENG…………...….……….3RD RESPONDENT/LANDLORD

BASE AUCTIONEERS……………………………………………….…4TH RESPONDENT

RULING

A. Parties and Their Representative

1. The Tenant/Applicant rented space on Plot Number B5-209 KAYOLE for the business (herein after referred to as the ‘Tenant”)

2. The firm of Mwamba & Gitonga Advocates represent the Tenant/Applicant in the matter. mwambagitongaadvocates@gmail.com

3. The Respondent Jogrespa Agencies is the agent of the Landlord Naboth Odero and Rinah Khavugwi Ochieng the Landlord  and owner of the suit premises Plot No. B5-209 KAYOLE rented out to the tenants (herein after referred to as the ‘Landlord’)

4. The firm of Wanjohi Gachie & Co. Advocates represent the Respondent/Landlord in this matter. wgee300@gmail.com

B. The Dispute Background

5. On 25th January 2016 the Tenant entered into a written tenancy agreement with the Landlord for suit premises Plot No.B5-209 for a term of five years at a monthly rent of Kshs 27,500/.

6. The agreement provided that the rent was subject to a negotiable review upwards after three years which both parties agreed to.

7. On 4th September 2020 the Landlord issued the Tenant with a Notice to Terminate the tenancy with effect from 1st December 2020 due to rent arrears

8. On the 15th October 2020 the tenant moved this tribunal by way of reference dated 15th October 2020 and Notice of Motion under certificate of urgency filed on 15th October 2020under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The tenant was seeking amongst other orders that pending the hearing and determination of the application that the tribunal order the Landlord their agents caretakers servants be restrained from evicting disconnecting water & electricity levying distress harassing intimidating and trespassing on the premises. Further that the court grant orders allowing the Tenant/Applicant to clear their outstanding rent arrears of Kshs. 60,000/-in three installments within a span of five months.

9. On 16th December 2020 the Tribunal gave orders prohibiting the respondents their agents employees servants accomplices and any other person from levying distress evicting trespassing and interfering with the tenants pending the hearing and determination of the application.

C. Jurisdiction

10. The jurisdiction of this tribunal is not in dispute

D. The Tenant’s Claim

11. The tenant filed a reference dated 15th October 2020 together with a Notice of Motion application under certificate of urgency and supporting affidavit dated 15th December 2020 which pleadings form the basis of this claim.

12. The tenant obtained restraining orders as against the landlord on 16th December 2020 and to date the Landlord is still restrained from levying distress evicting trespassing and interfering with the tenants pending the hearing and determination of the application.

E. The Landlord’s Claim

13. The 1st Respondent has filed a replying affidavit dated 3rd March 2021 and sworn by the manager having been appointed by the 2nd and 3rd respondents as the managers of their property

14. Parties filed written submissions and the matter was fixed for ruling on 8th October 2021.

F. Matters Not in Dispute

15. It is not in dispute that the there was a tenancy agreement between the landlord and the tenant which was reduced into writing.

16. It is not in dispute that the initial agreed upon rent of the premises was Kshs. 27,500/- but was later reviewed downwards to Kshs 15,000/-.

G. List of Issues for Determination

It is the contention of this Tribunal that the issue raised for determination is as follows

a) Whether there were rent arrears owed to the Landlord and if so how much?

H. Analysis and Findings

Whether there were rent arrears owed to the Landlord and if so how much?

17. The landlord in their written submissions claims that there are rent arrears owed to them by the tenant which stand at Kshs 62,500/- as at the time of this application.

18. The Tenant on the other hand claims that the landlord reviewed the rent downwards from Kshs. 27,500/- as per the agreement to Kshs 15,000/- through a letter dated 1st May 2020 addressed to the tenant from the 1st respondent with the authority of the landlord. As a result the amount owed to the landlord should be evaluated using the new rent of Kshs. 15,000/- as opposed to Kshs. 27,500/-.

19. On 1st May 2020 the 1st respondent addressed a letter to the tenant which provided that

2. “the landlord has therefore decided to adjust the monthly rent downwards to Kshs.15,000 per month with effect from 1st May 2020.

3 this rate will continue until such a time when things will return to normal

4. if you fail to submit your rent at any one time within the next period of three months this copy of the letter will serve as NOTICE to vacate the premises and the notice is payable.

20. The landlord in the letter dated 1st May 2020 decided to review the rent downwards from Kshs 27,500/- to Kshs 15,000/- due to the pandemic which was to the benefit of the tenant. The landlord clearly stated that the new rates would continue until such a time when normalcy resumed and the consequences of failing to remit rent were that the letter would serve as Notice to vacate.

21. On 2nd August 2020 the 1st respondent addressed another letter to the tenant which provided that

“While we have been lenient by reducing your rent to Kshs 15,000 you have failed to reciprocate by remitting your rent as per the agreement. The landlord has therefore instructed us to inform you that he has revoked the reduction and reverted to Kshs 27,500 with effect from 1st June 2020 when you defaulted. You are also reminded that you are expected to have vacated the premises by 1st September 2020 after settling your arrears.

22. After the tenant defaulted in paying rent from the month of June 2020 the landlord addressed the second later dated 2nd August 2020 informing the tenant that the rent had been reviewed upwards with effect from the month of JUNE 2020 when the tenant defaulted.

23. In the Case of Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLRit was stated that

“It therefore follows that where one party by his words or conduct, made to the other party a promise or assurance which was intended or affect the legal relations between them and to be acted on, the other party has taken his word and acted upon it, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him but he must accept their legal relations subject to the qualification which he has himself introduced.”

24. In the case of Central London Property Trust vs. High Trees House [1947]it was stated that;

“The logical consequence, no doubt is that a promise to accept a smaller sum in discharge of a larger sum, if acted upon, is binding notwithstanding the absence of consideration

When a man has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so”

25. The landlord in the previous letter dated 1st May 2020 informed the tenant that the reviewed rent of Kshs. 15,000/- would continue until such a time when things return to normal which the tenant placed reliance on It would be unjust to allow the Landlord to go back on his word and review the rent back to Kshs 27,500 arbitrarily. The landlord is disabled from doing the same under the doctrine of estoppel.

26. Section 4 (2) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301 Laws of Kenya provides that

A landlord who wishes to terminate a controlled tenancy, or to alter, to the

detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form.

27. By reviewing the rent back to Kshs. 27,500/- from the agreed Kshs.15,000/- the landlord was altering the agreement to the detriment of the tenant as per the provisions of section 4(2) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301 Laws of Kenya.The Act requires that the landlord send a notice to the tenant before making such alterations.

28. The letter dated 2nd August 2020 does not suffice as a notice both to terminate the tenancy as well as notice to alter the terms of the agreement since it does not meet the requirements of a valid notice as provided under section 4(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301 Laws of Kenya which provides that

No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party, as shall be specified therein

29. In this case the letter required that the alterations of the rent commence as from the month the tenant defaulted which was three months prior to when the 1st respondent sent the letter to the tenant which contravenes the above provision.

30. Based on the above and in the interest of justice the Tribunal pronounces itself as to the issue in the manner herein enumerated below

I. ORDERS

a) The upshot is that the tenant’s applications dated 15th October 2020 and 15th December 2020 are upheld under the following terms;

a. Landlord to prepare a statement of accounts using the reviewed rent of Kshs. 15,000/- up to the month of October 2021 when normalcy returned & curfew was lifted officially by the Government of Kenya.

b. Tenant to offset the said arrears within the next 90 days in default the landlord is at liberty to distress and to issue a valid Notice of Termination in the prescribed format.

c. Tenant to pay rent at the rate of Kshs 27,500/- on or before the 10th of every month beginning November 2021 as per the agreement.in default of which landlord is at liberty to distress.

d. The tenant’s reference dated 15th October is compromised in those terms save that parties be at liberty to apply incase of reconciliation disagreements.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 2ndday ofNovember, 2021 in the absence of the parties.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL