Modesta Akala v Reuben Kioko t/a Kioko Enterprises [2022] KEBPRT 117 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 124 OF 2021 (MOMBASA)

MODESTA AKALA...............................................................TENANT/APPLICANT

VERSUS

REUBEN KIOKO T/A KIOKO ENTERPRISES......LANDLORD/RESPONDENT

RULING

1. The Tenant’s notice of motion dated 28th May 2021 seeks orders of injunction restraining the Landlord/Respondent from alienating, wasting or removing the Tenant’s goods in the shop known as G5 Top Model Salon and a further order that the Respondent opens the Tenant’s shop pending the hearing and determination of this suit.

2. The Tenant in her affidavit states that the Respondent closed down her business premises on 27th April 2021 on account of rent arrears amounting to Kshs 30,000/-.

3. On 2nd June 2021, the Tribunal issued orders of injunction against the Respondent and also ordered him to open the Tenant’s premises pending the hearing and determination of the application.

4. On 15th June 2021 and17th August 2021when this matter came up for the hearing of the Tenant’s application, the parties did not turn up.

5. On 4th November 2021, the Tenant/Applicant informed the Tribunal that the premises had been given to another Tenant and she wanted to be compensated for the items taken by the Landlord.  the Tenant further told the Tribunal that there were court orders in place when the Landlord gave out the premises.

6. The Tenant has filed an affidavit with a list of the items/goods confiscated by the Landlord and which remain in the custody of the Landlord.  I do note that the estimated value of the goods retained by the Respondent is Kshs 349,655/- well over the Kshs 30,000/- rent arrears admitted by the Tenant.

7. The Landlord has not responded to the Tenant’s application.  He is holding the Tenant’s goods in defiance of the court orders issued on 2nd June 2021 and the leasing out of the premises to another Tenant during the pendency of this suit and on the face of the orders issued by the Tribunal on 2nd June 2021 is not only illegal but also contemptuous.  Unfortunately, the Tribunal does not have the jurisdiction to enforce its own orders or to punish for the disobedience of the same.

8. The Tenant has admitted she is out of the demised premises, albeit illegally.  She has further admitted that the premises has already been let out to a third party who has not been joined to these proceedings.  In the circumstances, there does not exist a Tenant/Landlord relationship between the parties herein and this Tribunal lacks the requisite jurisdiction to make any further orders in this matter.

9. In these unfortunate circumstances, the Tenant’s application dated 28th May 2021 is dismissed with no orders as to costs.  I have also noticed that the Tenant did not file a proper reference to the Tribunal but rather approached the Tribunal by her undated and unexecuted plaint which is irregular.

10. I will therefore order that this file be closed.

11. On Mr Kioko’s undertaking, the Tenant’s goods stored by the Landlord to be released to her forthwith.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari (Chairman) this 7th day of January 2022 in the presence of Mr Kioko and in the absence of the Tenant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL