Mwangi v Wangai [2022] KEBPRT 800 (KLR)

Mwangi v Wangai (Tribunal Case E043 of 2022) [2022] KEBPRT 800 (KLR) (21 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 800 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E043 of 2022

Gakuhi Chege, Vice Chair

September 21, 2022

Between

John Wanyange Mwangi

Applicant

and

James Wangai

Respondent

Ruling

1. Through a motion dated 4th April 2022, the landlord moved this Tribunal under section 10 & 12(1) (c ) & (4) of Cap. 301, Laws of Kenya seeking in pertinent part an order for immediate delivery of vacant possession against the tenant in respect of a business premises situate on L.R NO. Nakuru Municipality Plot No. 10/33 and in default, the Landlord be at liberty to evict him through a licensed Auctioneer. He further seeks that the OCS Central Police Station Nakuru do provide security and ensure compliance.

2. The application is supported by the affidavit of the landlord of even date wherein it is deponed that the tenant was served with a notice to terminate tenancy on 27th January 2022 on account of default in payment of rent and/or late payment of rent and subletting the premises without consent and approval of the landlord. The notice is annexure ‘JWM1’ which was expressed to take effect on 1st April 2022.

3. Although the applicant deposes that the Respondent filed a reference dated 24th February 2022 informing him that he will not be complying with the said notice, no such reference has been exhibited in this matter.

4. The Respondent is accused of subletting the suit premises to Ringtel Ltd without the landlord’s consent and/or approval as evidenced by annexure marked ‘JWM2’. He had not also paid rent for the months of February, March and April 2022. He is also accused of being a habitual rent defaulter whenever rent becomes due and payable. This is evidenced by annexures ‘JWM 3(a)-(d)’.

5. Despite being served with the application and appearing through Murunga advocate on 23rd May 2022 and 2nd August 2022, no replying affidavit or other response has been filed in this matter to controvert the landlord’s case.

6. In the premises, the application is unopposed and therefore for allowing.

7. Under section 10 of Cap. 301, where a landlord has served a notice in accordance with section 4 of the Act on a tenant and the tenant fails within the appropriate time to notify the landlord of his unwillingness to comply with such notice or to refer the matter to a Tribunal, then subject to section 6 of this Act, such notice shall have effect from the date therein specified to terminate the tenancy or terminate or alter the terms and conditions thereof or the rights or services enjoyed thereunder.

8. In absence of any evidence of a reference or opposition to the landlord’s application, I am satisfied that the landlord has proved his case on a balance of probabilities.

9. As regards costs, the same are in the Tribunal’s discretion under section 12 (1) (k) of Cap. 301, Laws of Kenya but always follow the event unless for good reasons otherwise ordered. I shall award costs to the landlord on the lower scale since the matter is undefended.

10. In conclusion therefore, the following final orders commend to me:-i.The application dated 4th April 2022 is allowed in terms of prayers 3, 4 and 5 thereof.ii.Costs of the application assessed at Kshs.15,000/- against the tenant.It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 21ST DAY OF SEPTEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:-Mr. Njoroge for the Landlord/ApplicantNo appearance for the Tenant/Respondent