Mukolwe v Mwanzi & another [2025] KEBPRT 219 (KLR)

Mukolwe v Mwanzi & another (Tribunal Case E073 of 2024) [2025] KEBPRT 219 (KLR) (26 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 219 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E073 of 2024

Gakuhi Chege, Chair & J Osodo, Member

March 26, 2025

Between

Brenda Mukolwe

Tenant

and

Everest Anogore Mwanzi

Landlord

and

Timpech Auctioneers

Respondent

Ruling

A. Dispute Background 1. The tenant/applicant moved this Tribunal through a Reference under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishment)s Act Cap 301 dated 22nd April 2024 with a Complaint that the landlord has been constantly harassing her without any reason and has engaged an auctioneer to attach her business items despite being up to date with rent payments.

2. The tenant/applicant also filed a notice of motion under certificate of urgency dated 22nd April 2024 in which she sought for the following orders; -i.That the application be certified urgent.ii.That a temporary order of injunction be issued restraining the respondents from unlawfully evicting her or levying distress on her business items at the suit premises pending the hearing and determination of the application/reference.iii.That the OCS Kakamega Police Station to ensure compliance.iv.That costs of the application be awarded to her.

3. The tenant/applicant swore a supporting affidavit of even date in which she deposes as follows; -i.That she entered into a tenancy agreement with the landlord over a business premise located within Kakamega Town. A copy of the tenancy agreement is annexed as “BM-1”.ii.That despite the tenancy agreement lapsing back in 2020, she has regularly paid rent as and when required and is still in occupation to date.iii.That sometimes in 2022, the landlord instructed an auctioneer trading as Jakacha Auctioneers to levy distress for rent against her goods, however the matter was settled and rent owed was cleared by her in the presence of the Auctioneer.iv.That despite remitting the rent payments to the landlord, he has failed, refused and/or neglected to issue her with rent receipts in a timely manner.v.That the landlord has resorted to harassing her by instructing another Auctioneer to levy distress for rent despite being not in arrears. Copies of letter of instruction and proclamation notice are annexed as “BM-4(a) & (b)”.vi.That further to the above, the said Auctioneer wrote to her employer and superior making false allegations on behalf of the landlord in a bid to frustrate her into moving out of the suit premises.vii.That as a result of the respondents’ malicious letters, she issued a response to her superior explaining her predicament and intention of sorting out the misunderstanding. A copy of the letter is annexed as “BM-7”.viii.That she is up to date in terms of rent payments and has even paid rent for the month of May 2024.

4. On 26th April 2024, this Tribunal granted interim orders of injunction against the respondents pending hearing of the application inter-partes.

5. The application was opposed by the landlord/respondent through a replying affidavit sworn on 14th May 2024 in which he deposes as follows;i.That the application is res judicata and an abuse of the due process in view of the orders made on 2nd December 2022 by Hon. Gakuhi Chege in Kakamega BPRT Case No E104 of 2022 in which this Tribunal granted orders and discharged its earlier orders of 27th October 2022 and allowed the landlord to use lawful means to recover the rent due by the tenant/applicant and her complaint was dismissed. A copy of the said order is annexed as “EM-1”.ii.That since the said order was delivered on 2nd December 2022, the landlord’s efforts to recover the rent for both the salon and boutique/barber shop has been unsuccessful and the rent arrears as at 14th May 2024 was Kshs 785,000. iii.That it is not true that the tenant settled the rent arrears as alleged.iv.That the tenant/applicant should be ordered to pay the rent due and owing and further ordered to vacate the suit premises on the grounds of failure to remit rent in time.

6. The tenant filed a further affidavit dated 27th May 2024 in which she deposes as follows; -i.That the application is not res judicata in view of the fact that the Auctioneer in the application and reference was not a party to the initial suit being Kakamega BPRT Case No E104 of 2022. ii.That the issue of rent arrears was duly settled and she resumed peaceful occupation of the suit premises.iii.That the previous reference in Kakamega BPRT Case No E104 of 2022 was never heard and determined on merit and as such cannot be res judicata.iv.That the arrears claimed in the landlord’s replying affidavit are unsubstantiated. Payment receipts are annexed as “BM-1”, “BM-2”, “BM-3” and “BM-4”.v.That Jakacha Auctioneers recorded a statement in this suit confirming that all the rent arrears owed to the landlord was cleared.vi.That the landlord did not annex any books of accounts to show her indebtedness in terms of rent arrears.

B. Issues for Determination & Analysisa.Whether the tenant owes any rent arrears to the landlord and if so, the amount due.b.Who is liable to pay costs of the case? Issue (a) whether the tenant owes any rent arrears to the landlord and if so, the amount due. 7. In a ruling delivered on 1st August 2024, this Tribunal directed that the application dated 22nd April 2024 proceeds to hearing by way of viva voce evidence and both parties were directed to comply with Order 11 of the Civil Procedure Rules within 21 days thereof.

8. Both parties were also directed to file and exchange rent account statements together with evidence of rent payment within 21 days thereof. The status quo was to be maintained in the pendency of hearing and determination of the case.

9. Following the said ruling, the tenant filed her list of witnesses and statements together with a list and bundle of documents all dated 22nd April 2024.

10. The landlord did not comply with the Tribunal’s directions and instead relied on the replying affidavit sworn on 14th May 2024. He did not also file a statement of rent account and we shall therefore rely on the replying affidavit together with the oral and documentary evidence tendered by both parties before this Tribunal.

11. The tenant testified that she had a previous case with the landlord over rent arrears which was resolved through the landlord’s Auctioneers after she paid the amount due. She did not however explain nor tender any evidence on how she paid the said arrears although she indicated that she ordinarily pays rent through Mpesa.

12. The monthly rent payable in respect of the suit premises is Kshs 15,000/=. She produced Mpesa statements showing that the last rent payment through that means was made on 26th January 2023 and further testified that she has been paying rent in cash thereafter.

13. She denied being in rent arrears and stated that the landlord has not been issuing her with the rent card nor rent payment receipts as proof of the payments made.

14. The tenant produced her Mpesa statement for a total sum of Kshs 50,000/= made on 26th January 2023 being rent for February to June 2023. She claimed that it was a prepayment of rent for the said period. After June 2023, the tenant testified that the landlord would collect rent in cash and deliver the receipts in person.

15. The tenant further testified that the landlord never sent any demand notice prior to sending Auctioneers. She indicated that she only came to know about the proclamation through the Police Service headquarters after the same was served upon her superior by the Auctioneers. The landlord claimed Kshs 695,000/= in the proclamation notice.

16. The tenant stated that as at 17th October 2022, she had cleared all the rent arrears owing to the landlord and as such, the arrears could not have accumulated to Kshs 695,000/= by 14th November 2023 when the proclamation was issued. She stated that she only had one shop in the landlord’s premises for which she produced a tenancy agreement.

17. In cross examination, the tenant denied having a Salon in the landlord’s premises and instead stated that she operates a barber shop therein. She requested for a rent inspector to be sent to the premises to confirm the same.

18. The tenant confirmed having filed Kakamega BPRT Case No E104 of 2022 which was decided against her by this Tribunal. She testified that she complied with the orders given therein. She stated that she sat with Jakacha Auctioneers and cleared the sum of Kshs 540,000/= in cash and Mpesa. She could not tell how much was paid in cash or Mpesa. She relied on the Mpesa statement produced in court.

19. The tenant’s witness was one Charles James Karani (TW2). He is the proprietor of Jakacha Auctioneers who was engaged by the landlord to recover the sum of Kshs 540,000/=. It was his evidence that the landlord was paid the sum of Kshs 540,000/= in cash and Mpesa. He however did not witness the payments and could not tell how the said payments were made.

20. The witness stated that before the tenant commenced payments, there was a meeting between him, the tenant and the landlord at the latter’s office and that the landlord took the minutes thereof. No such minutes were tendered in evidence. The witness stated that in the light of the said meeting, he needed not discharge the tenant in writing.

21. On the other hand, the landlord testified and relied on his replying affidavit sworn on 14th May 2024 to oppose the tenant’s case. He added that the tenant approached him in the year 2017 with intention to take up space for operating a Salon in his business premises. The agreed rent was Kshs 10,000/=. Later on, the tenant took up another shop on the front part of the building where she started a boutique business at a monthly rent of Kshs 15,000/=. The relationship was good until August 2020 when the tenant failed to pay the September rent for the boutique. She fell into arrears thereafter for a period of 4 years, 2 months thereby accumulating a sum of Kshs 765,000/= as at November 2024. According to the landlord, the tenant owes rent of Kshs 170,000/= for the Salon business in regard to the period July 2023 to November 2024. He therefore claims a sum of Kshs 935,000/= from the tenant.

22. According to the landlord, the tenant changed the salon business into a barber shop in Mid-2024 and was running both businesses separately. The landlord testified that he had been issuing the tenant with receipts in his trade name of Xrossval Marketting Agencies and denied the tenant’s allegation of failure to give receipts. He confirmed that the money was being paid both in cash and Mpesa. He accused the tenant of not being consistent in her rent payments.

23. The landlord produced the order issued in Kakamega BPRT No 104 of 2022 which states as follows; -“1. The interim orders given in this matter on 27th October 2022 are discharged and the landlord is at liberty to use lawful means to recover the rent due in view of the admission that rent is owing by the tenant.2. The complaint by tenant is therefore ordered dismissed under Section 12 (4) of Cap 301, Laws of Kenya.”

24. We had ruled earlier that the issues herein are not res judicata and ordered the case to proceed to hearing and determination on the issue of the current rent arrears claimed by the landlord/1st respondent.

25. The landlord denied that the tenant paid the initial rent arrears as ordered in the previous case. The proprietor of Jakacha Auctioneers who testified as the tenant’s witness herein claimed that the rent arrears were paid directly to the landlord. Consequently, the said issue boils down to the question as to whether the decree therein was satisfied or not and as such ought to be determined in the said case in line with Section 34(1) of the Civil Procedure Act, Cap 21, Laws of Kenya which provides as follows: -“(1)All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.’

26. As regards, the rent arrears arising after 2nd December 2022 when the ruling in the said case was made, the same ought to be determined in this case. The landlord at paragraph 6 of his replying affidavit sworn on 14th May 2024 claims a total sum of Kshs 785,000/= made up as follows: -a.Rent arrears for the Salon from July 2023 to May 2024 (11 months) at Kshs 10,000/= per month……………………………...Kshs 110,000/=b.Rent for the boutique/barber shop from September 2020 to May 2024 (45 months) at Kshs 15,000/=………………………….675,000/=.

27. On 20th December 2024, this Tribunal ordered for a rent inspection to be carried out in the suit premises and a report was duly filed showing that the tenant was in use and occupation of only one shop wherein he conducts the business of a boutique, barber shop and a Salon in the names of Brames Beauty Parlour since the year 2018. The Rent inspector observed that there is only one entry door to the premises.

28. In view of the said report, we do not agree with the landlord that the tenant occupies two shops and the claim for Kshs 110,000/= in respect of the Salon business is hereby rejected. The foregoing finding is buttressed by the fact that only one tenancy agreement was exhibited in this matter.

29. In regard to the claim of Kshs 675,000/= in respect of the barber shop, the tenant at paragraph 9 of her further affidavit sworn on 27th May 2024 deposes that the landlord acknowledged a total sum of Kshs 295,000/= paid via Mpesa and cash. Out of the said amount, a sum of Kshs 130,000/= paid on 20th November 2022 ought to be excluded as it was made before the decision in the previous case leaving a sum of Kshs 165,000/= as the only amount paid by the tenant after the date of the said ruling. Upon deducting the said amount, the balance due to the landlord is Kshs 540,000/=.

30. Although the tenant claims that the landlord did not provide a rent card or records to show her indebtedness, we find and hold that the burden of proving that she is not indebted in the sum claimed by the landlord shifted to her in line with Sections 107, 108 and 109 of the Evidence Act, Cap 80, Laws of Kenya, which provides as follows: -“107. Burden of proof(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. Incidence of burdenThe burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109. Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

31. In the premises, we find and hold that the tenant owes the landlord a sum of Kshs 510,000/= in rent arrears based on the foregoing analysis.

32. Consequently, the tenant is not entitled to the injunction reliefs sought in her application dated 22nd April 2024 in line with the decision in the case of Samuel Kipkori Ng’eno & another v Local Authorities Pension Trust (registered Trustees) & another (2013) eKLR at paragraphs 9 & 12, wherein the Superior Court had the following to state;“9. A tenant’s first and main obligation is to pay rent as and when it becomes due, for the landlord has the right to an income from his investment. Why would a tenant allow himself to fall into such huge arrears of rent?.........................12. The temporary injunction sought in the present application is an equitable remedy at the court’s discretion. He who comes to equity must come with clean hands. A tenant who is in huge arrears of rent is undeserving of the court’s discretion. The court cannot be the refuge of a tenant who fails to meet his principal obligation of paying rent as and when it becomes due.”

Issue (b) who is liable to pay costs of the case? 33. In regard to costs, Section 12(1)(k) of Cap. 301, Laws of Kenya, provides that costs of any suit before this Tribunal are in its discretion but always follow the event unless for good reasons otherwise ordered. We shall order that costs of this suit shall be borne by the tenant.

C. Disposition 34. In conclusion, the following final orders commend to us; -a.The application dated 22nd April 2024 is hereby dismissed with costs and the interim orders given herein are hereby discharged/set aside.b.The tenant is liable to pay a sum of Kshs 510,000/= being the rent arrears accrued after 2nd December 2022. c.The amounts owing in regard to the period prior to 2nd December 2022 shall be pursued in Kakamega BPRT Case No E104 of 2022 in line with the ruling delivered therein and Section 14(1) of Cap 301, Laws of Kenya.d.Costs of this suit assessed at Kshs 40,000/= are hereby awarded to the landlord.It is so ordered.

JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 26TH DAY OF MARCH 2025. HON. GAKUHI CHEGE - (PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON. JOYCE AKINYI OSODO - (PANEL MEMBER)In the presence of: -Mulama for the tenantOsango for the landlord