Mohamed v Mahmood [2022] KEBPRT 827 (KLR)

Mohamed v Mahmood (Tribunal Case E049 of 2022) [2022] KEBPRT 827 (KLR) (14 November 2022) (Judgment)

Neutral citation: [2022] KEBPRT 827 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E049 of 2022

Gakuhi Chege, Vice Chair

November 14, 2022

Between

Faiza Mohamed

Tenant

and

Fatma Mahmood

Landlord

Judgment

1. Before me is a reference under section 6(1) of cap 301, filed by the tenant on March 10, 2022 to oppose a tenancy notice issued upon her by the landlord dated February 28, 2022 seeking to terminate her tenancy with effect from May 1, 2022.

2. The tenancy notice is based on the grounds that the tenant had defaulted on payment of rent for 30 months thereby accumulating arrears of Kshs 360,000/-. She was also irregular in payment of rent.

3. The landlord in opposing the reference filed the following documents with this tribunal:-i.Witness statement dated June 28, 2022. ii.List of documents dated June 29, 2022 and copies thereof.iii.Written submissions dated September 12, 2022.

4. On May 20, 2022, the tenant’s counsel sought for time to file documents and was granted 14 days and the matter was therefore listed for mention on June 22, 2022.

5. On June 22, 2022, both parties were granted 7 days to file compliance documents in form of witnesses statements and any documents intended to be relied upon during the hearing. The matter was listed for mention on August 4, 2022.

6. On August 4, 2022, only the landlord had complied with order 11 of the Civil Procedure Rules and the tenant was given a further 14 days to comply. The matter was therefore fixed for hearing on August 30, 2022.

7. On August 30, 2022, counsel for the tenant indicated that she had uploaded the compliance documents on the e-filing portal and would serve the same in 3 days upon the landlord’s counsel. She therefore requested that the matter be canvassed by way of written submissions. The proposal was embraced by the landlord’s counsel and directions to that effect were issued.

8. Each party was thus granted 14 days to file submissions with the landlord starting. The matter was therefore put off to September 30, 2022 for mention to confirm compliance.

9. On September 30, 2022, when the matter came up for mention, only the landlord’s counsel had complied and the tenant’s counsel was given 7 days to file submissions and the matter was nonetheless fixed for judgment on November 14, 2022.

10. By the time of writing this judgment, the tenant had not complied with order 11 of the Civil Procedure Rules neither had she filed submissions.

11. According to the landlord, the tenancy notice was served upon the tenant on account of her failure to pay rent which is Kshs 2000/- per month as per the bundle of documents filed by the landlord. An agreement confirming the tenancy arrangement entered into before the chief, Old Town location is exhibited as document No 1 by the landlord.

12. The tenant is said to have paid rent inconsistently until some time in December 2020 as per receipts marked document No 2 in the list of documents.

13. The tenant failed to pay rent despite demand by the landlord which led to rent arrears accumulation to Kshs 27,000/- as at July 2022 as can be seen in the statement marked as document No 7 in the list of documents.

14. As a result, the landlord was compelled to serve a tenancy notice to terminate the tenancy which is now subject matter of this reference.

15. I have noted the submissions of the landlord’s counsel on the issues framed and the same have not been countered by the tenant. I have also not seen any documents on the efiling portal or in the court file to justify invalidation of the tenancy notice.

16. The landlord’s notice complies with the requirements of section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act cap 301 Laws of Kenya as read with section 7 (1) (b) thereof as it is in the prescribed form and there is evidence of non-payment of rent for more than 2 months.

17. In the premises, I am convinced beyond any peradventure that the landlord has proved the tenancy notice on a balance of probabilities and I shall uphold it under section 9(1) of cap 301, Laws of Kenya.

18. 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 for good reasons otherwise ordered. I have no reason to deny the landlord costs.

19. In conclusion, the final orders which commend to me are as follows:-a.The landlord’s tenancy notice dated February 28, 2022 terminating the tenant’s tenancy with effect from May 1, 2022 is hereby approved in its entirety.b.The tenant shall vacate the suit premises with immediate effect and in default she will be evicted therefrom by a Licensed Auctioneer who shall be accorded security by the OCS of the Police Station within whose jurisdiction the premises are situate.c.The landlord shall be entitled to use lawful means including distress for rent to recover any amount of arrears of rent due by the tenant without payment of further court fees thereon.

21The tenant shall pay costs of Kshs 25,000/- to the landlord for this reference.

22It is so ordered.

RULING DATED, SIGNED & VIRTUALLY DELIVERED THIS 14TH DAY OF NOVEMBER 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:-Ahmed for the landlord.Miss Muyoka holding brief for Mukanzi for the Tenant