Mwindia v Juma & another [2025] KEBPRT 242 (KLR)

Mwindia v Juma & another (Tribunal Case E167 of 2024) [2025] KEBPRT 242 (KLR) (15 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 242 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E167 of 2024

A Muma, Member

April 15, 2025

Between

Shida Mwindia

Applicant

and

Afua Juma

1st Respondent

Kithemu Auctioneers

2nd Respondent

Ruling

A. Parties and Representatives 1. The Applicant, Shida Mwandia, is the tenant and had rented space for business in the suit property situated within Mombasa Town, within Mombasa County (hereinafter the “Tenant”).

2. The firm of E.E Wesonga & Associates Advocates represent the Tenant.

3. The 1st Respondent, Afua Juma, is the owner of the suit premises and had rented out the aforementioned space to the tenant (hereinafter the “Landlord”).

4. The 2nd Respondent, Kithemu Auctioneers, is the 1st Respondent’s agent (hereinafter the “Agent”).

5. The firm of Muturi Gakuo & Kibara represents the Respondents in this matter.

B. Background of the Dispute 6. The Tenant moved this Tribunal vide a Reference and a Notice of Motion Application filed under a Certificate of Urgency both dated 12th July 2024 on a complaint that the Landlord had instructed the 2nd Respondent to levy distress of rent despite him not being in any arrears.

7. On 15th July 2024, this Honourable Tribunal issued orders inter alia; certifying the matter as urgent, and restraining the Respondents from attaching, selling, advertising or in a way disposing the Tenant’s tools of trade and that the OCS Changamwe Police Station to enforce the Orders.

8. Further, the Court directed that the matter be listed for interpartes hearing on 1st August 2024 and that the Tenant serves the Landlord with the reference and Application and file a return of service.

9. When the matter came up for hearing on 1st August 2024, the Landlord indicated his intention to withdraw the demand letter dated 21st March 2024 in respect of the rent arrears and return the proclaimed goods with no order as to costs.

10. The Tenant did not have an objection to the said withdrawal. However, the Tenant prayed for a mention date to assess the cost of damages she had suffered due to the unlawful proclamation. As such, this Court directed that the Parties file submissions on the costs.

11. On the one hand, the Tenant elected to rely on the letter dated 7th August 2024 wherein she provided a breakdown of the damages she suffered during the period his tools of trade had been proclaimed and carted away. On the other hand, the Landlord filed a Replying Affidavit dated 20th November 2024 and submissions dated 24th February 2025.

C. The Tenant’s Case 12. The Tenant avers that the 2nd Respondent, under the instructions of the Landlord, proclaimed and carted away his tools of trade on 21st June 2024 without any lawful justification.

13. It is the Tenant’s case that due to the Landlord’s unlawful acts, she has suffered damages and loss of income for the period that the 2nd respondent held on to his tools of trade.

14. The Tenant therefore prays that this Court assesses damages and orders the Landlord to compensate his for the loss suffered.

D. The Landlord’s Case 15. The Landlord avers that up until the month of March 2024, the tenant owed KShs.19,250. 00 being rent arrears from November 2023. This prompted the him to issue a demand letter dated 21st March 2024 demanding settlement of the aforementioned arrears and subsequently instruct auctioneers to recover the amount.

16. It is the Landlord’s case that the proclaimed goods were later returned to the Tenant. Additionally, the Landlord submits that the computation of the losses suffered in inaccurate and unreliable for the reason that the Tenant contradicts himself as to the period for which the 2nd Respondent held his tools of trade by indicating 21 days and using 41 days to compute the total amount in his letter dated 7th August 2024.

17. The Landlord further claims that the catalogue and daily sales produced by the Tenant are merely handwritten has not properly proved his catalogue as she has not attached any receipts of stock bought as well as a list of customers who bought the said stock and KRA ETR Receipts.

E. List of Issues for Determination 18. Having considered all materials filed by the Parties herein, this Court finds that the sole issue that falls for determination is;Whether the Tenant is entitled to compensation as a result of the Landlord’s unlawful acts

E. Analysis & Determination 19. Section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 Laws of Kenya provides for the powers of this Tribunal. In relation to the circumstances herein, the act provides that:“to award compensation for any loss incurred by a tenant on termination of a controlled tenancy in respect of goodwill, and improvements carried out by the tenant with the landlord’s consent”

20. The Tenant calls upon this Court to determine damages he suffered as a result of the Landlord’s unlawful acts of proclaiming and carting away his tools of trade.

21. In support of his claim, the Tenant has placed before this Court statements to prove the daily profits of his business and seeks to be compensated at an average rate of KShs. 2,500. 00 and the cost of Stock in the suit premises on 21st June 2024, when the 2nd respondent carted away his tools of trade.

22. The Landlord has challenged the probative value of the Tenant’s statements stating that the same cannot be substantiated as the Tenant failed to file proper accounts, a list of customers and produce ETR receipts. As such, the Landlord opines that the Tenant could have fabricated the same.

23. Additionally, the Landlord contends the period by pointing out a contradiction in the Tenant’s calculations, where the Tenant indicates the period as 21 days but uses 41 days to calculate the damages for loss of business.

24. It is trite law that special damages must be specifically proved with a degree of certainty but must consider the circumstances of the case. In Richard Okuku Oloo vs South Nyanza Sugar Co. Ltd [2013] eKLR the Court of Appeal again held as follows:“We agree with the learned judge that a claim for special damages must indeed be specifically pleaded and proved with a degree of certainty and particularity, but we must add that, that degree and certainty must necessarily depend on the circumstances and the nature of the act complained of.”

25. The circumstances herein are that the Tenant runs a butchery which may be considered a small business enterprise, and which is most likely operates as a family business where accounts are rarely kept and audited by qualified professionals.

26. This Court is guided by the decision of the Court of Appeal in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko which held that;“We appreciate the expectation of Mr. Inamdar that accounts books, income tax returns or audited accounts would have put the claim beyond doubt if it was pleaded as special damages or even as general damages. But there is dicta in decided cases that one does not lose his remedy in damages merely because quantification is difficult…”

27. This Court is further guided by the decisions in Kimathi Mbuvi t/a Kimatu/Mbuvi & Brothers -vs- Augustine Munyao Kioko (2006) KLR and Wambua -vs- Patel (1980) KLR where the respective courts observed that proof of a person’s earnings by production of documents is not the only way as it would cause a lot of injustice to many Kenyans who are illiterate and unable to keep records yet they earn their livelihood in various ways.

28. It is noteworthy that one of the equitable doctrines states that equity will suffer no wrong without a remedy which means that equity aims to provide a remedy for every legal wrong/injury. Therefore, this court is allowed in equity to award an estimate amount commensurate to the damage for loss of business.

29. There is no doubt that the Landlord unlawfully carted away the Tenant’s tools of trade thereby interrupting the Tenant’s business for a period, causing the Tenant to suffer loss. This the Landlord did without lawful cause as the Tenant wasn’t in any rent arrears.

30. Considering the above, it is this Court’s considered opinion that when a party decides to take the law into his own hands knowingly and willingly, he should be able to bear the consequences of his actions.

31. Having carefully perused the statements produced by the Tenant, this Court notices that the Tenant earned profits from KShs. 2,100. 00 to KShs. 4,000. 00. As such, this Court finds that KShs. 2,500. 00 per day as profit cannot be said to be far-fetched.

32. This Court notes that the period for which this amount is due is in dispute. Neither party herein have indicated when exactly the goods were returned. In his letter dated 7th August 2024, the Tenant contradicts himself by initially indicating 21 days but calculated the amount with 41 days.

33. This not being very clear, this Court is inclined to use the initially indicated period of 21 days to arrive at the total amount of compensation being KShs. 52,500. 00.

E. Orders 34. In the upshot. the Tenant’s Reference and Application dated 12th July 2024 are hereby allowed in the following terms:a.The Landlord is hereby ordered to pay KShs. 52,500. 00 to the Tenant being damages for loss of business within 14 days of the date hereof in default the same can be deducted from rent.b.Costs of the suit assessed at Ksh. 10,000. 00 to be borne by the Landlord.

HON A. MUMA - MEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 15TH DAY OF APRIL 2025 IN THE ABSENCE OF PARTIES.