Mwangi v Kabengi Investment [2024] KEBPRT 65 (KLR)

Mwangi v Kabengi Investment (Tribunal Case E684 of 2023) [2024] KEBPRT 65 (KLR) (19 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 65 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E684 of 2023

Andrew Muma, Ag. Chair

January 19, 2024

Between

James Mwangi

Applicant

and

Kabengi Investment

Respondent

Ruling

A. Parties and their Representatives 1. The applicant, James Mwangi is the tenant of the suit premises known as shop No. G5 within Nairobi.

2. The applicant appears in person in this matter.

3. The respondent the landlord and owner of the suit premises.

4. The firm of M/S Mbichi Mboroki & Kinyua Advocates represents the Tenant in this matter.

B. Background of the Dispute 5. The Tenant moved this Tribunal vide a reference and a notice of motion both dated July 14, 2023 seeking he following orders certifying the matter as urgent, that the landlord be restrained from interfering, harassing, and threatening to evict and/or locking the Tenant from the premises and reinstate the tenant in the suit premises with immediate effect in default of which the OCS Githurai police station assist in breaking into the premises.

6. Further the tenant sought orders compelling the landlord to reopen the premises to allow the tenant continue conducting business without any interference and staying the notice to vacate dated July 1, 2023 pending the hearing and determination of the application.

7. The landlord filed a replying affidavit in opposition of the tenant’s application

C. Tenant’s Case 8. The tenant’s application is based on the grounds that the Landlord has unlawfully locked the applicant’s suit premises without any Court Order and or serving a legal notice to warrant the illegal closure.

9. The tenant avers that the Landlord issued him with an illegal notice to terminate July 1, 2023 and is not in rent arrears

D. Landlord’s Case 10. The landlord avers in his replying affidavit that the tenant’s business is still operational and running and invites the tribunal to the premises to confirm that the tenant is still open and operating.

11. Further, the landlord states that the door he closed is not part of the tenant’s tenancy and it was enabling the tenant to use the common lettable area for cooking which is against the tenancy agreement dated September 5, 2022.

12. The landlord withdrew the notice to terminate the tenancy dated July 1, 2022 and asked that the tenant continues to pay rent by the 5th of every month.

E. Issues for Determination 13. I have carefully considered all documents filed and evidence adduced before this court. It is my considered opinion that one issue falls for determination:i.Whether the Tenant is in breach of the tenancy agreement?

F. Analysis and the Law 14. I take note that it is not in dispute that the landlord locked the rear door of the suit premises. What is in contention is the reason why he did so.

15. The Tenant provided a tenancy agreement dated September 5, 2022 which contained among other terms, a term restraining the tenant from putting anything on the veranda and in particular, items such as furniture, basins, washing clothes or cooking utensils.

16. I am convinced that the locking the rear door by the landlord was necessitated by the tenant’s continued breach of the term of the above mentioned tenancy agreement. However, the rear door is part of the suit premises and therefore, locking it interfers with the tenant’s right to quiet enjoyment of the premises.

17. I note that the tenant has partially complied with the order of the court dated October 5, 2023 directing him to pay rent arrears amounting to Kes 72,000. 00. The Tenant has placed before this court receipts evidencing payment of rent for the months of July, August, October and November.

18. There is no evidence of payment of rent for the month of September from both the landlord and the tenant. This Tribunal is therefore not in a position to determine whether there are any outstanding arrears.

19. I have in addition read clause 2 which states tenant shall not put anything in the veranda and lists the same. This and other facts stated above lead me to make the following findings.

G. Orders 20. The upshot is that the tenant’s reference and notice of motion application dated July 14, 2023 is allowed in the following terms:a.The landlord is hereby restrained from interfering with the tenant’s tenancy quiet enjoyment of the tenancy and should open the rear door with immediate effect, failure to which the OCS Githurai shall ensure compliance of this order.b.The tenant is hereby restrained from using the veranda outside the premises in any way that amounts to breach of clause 2 of the tenancy agreement. The tenant shall with immediate effect clear the veranda area.

c.Tenant to clear any outstanding arrears on or before January 31, 2024 and continue to pay rent by the 5th day of every month.d.Each Party to bear their own costs.

HON. A. MUMA - AG CHAIR/MEMBERHON JACKSON ROP - MEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, DELIVERED AND SIGNED AT NAIROBI ON THIS 19TH DAY OF JANUARY 2024 IN THE PRESENCE OF BETTY KIVERA HOLDING BRIEF FOR KINYUA FOR THE LANDLORD AND PROPERTY MANAGER AND OKETCH FOR THE TENANT.HON. A. MUMA - AG CHAIR/MEMBERHON JACKSON ROP - MEMBERBUSINESS PREMISES RENT TRIBUNAL