Namu v Kirimu [2024] KEBPRT 190 (KLR)

Namu v Kirimu (Tribunal Case E053 of 2023) [2024] KEBPRT 190 (KLR) (12 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 190 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E053 of 2023

CN Mugambi, Chair

February 12, 2024

Between

Lydia Njoka Namu

Applicant

and

Edwin Mwenda Kirimu

Respondent

Ruling

Introduction 1. The tenant’s Application dated 17. 10. 2023 seeks orders that the landlord be ordered to re-open the suit premises, and that the Respondent be restrained from in any manner whatsoever interfering with the tenant’s business and be ordered to compensate the tenant for the losses incurred, police help and costs of the suit have also been sought in the said application.

The Tenant’s depositions 2. The tenant’s affidavit in support of his application may be summarized as follows:-a.That the tenant currently pays a monthly rent of Kshs. 4,000/= for the suit premises wherein he runs a kinyozi business.b.That the landlord/Respondent locked the suit premises on 16. 10. 2023, refused to open the same and has exposed the tenant to great losses.c.That the landlord is desirous of evicting the tenant from the suit premises without a genuine reason.d.That it is fair and just that the tenant’s motion be allowed.

The landlord’s depositions 3. The landlord’s/Respondent’s replying affidavit may be summarized as follows:-a.That the Applicant is the Respondent’s tenant in plot No. 5 Kivango market (Mutunduri) Embu County, hereinafter the suit premises.b.That the tenant’s miraa business is a security threat to other tenants.c.That the tenant runs an illegal gambling business which the Respondent has reported to the authorities.d.That the Applicant’s customers have been a nuisance to other tenants as they occupy the open space behind the suit premises.e.That the tenant has rent arrears of Kshs. 4,000/=.f.That the tenant is not a protected tenant and it is only fair that he is ordered to pay the rent arrears of Kshs. 4,000/= and render vacant possession of the premises.

Analysis and determination 4. The only issue that arise for determination in this application is whether the tenant is entitled to the orders sought in his application and what order ought to be made in disposing of the complaint/reference.

5. The Applicant’s suit seems to have been triggered by the actions of the landlord in locking the Applicant’s premises. The landlord doe s not deny in his replying affidavit that indeed he had locked the Applicant’s suit premises on 16. 10. 2023. Indeed, on 18. 10. 2023, the Respondent was ordered to re-open the suit premises. The Respondent’s action of locking up the suit premises was in my view, an illegal attempt at terminating the tenancy contrary to the provisions of Section 4(2) of Cap 301 of the Laws of Kenya.

6. The landlord has claimed that the tenant’s business is a security threat and a nuisance to other tenants. The Respondent has not produced any evidence in his affidavit in support of these allegations and even if they were to be true, then the allegations can only be used as grounds of termination of the tenancy in a notice served upon the tenant under the provisions of Section 4(2) of Cap 301. I therefore do not find any merits in the Respondent’s allegations.

7. The Respondent has deponed in his affidavit that the tenant owes him rent in the sum of Kshs. 4,000/=. The tenant has not denied that he owes the landlord the said rent and on a balance of probabilities, I do find that indeed the tenant owes the said rent.

8. The Respondent’s prayer for vacant possession cannot be granted for the reasons that if the Respondent is desirous of having the tenant vacate the premises, then he has to follow the procedure for the termination of tenancies provided for under Section 4 of Cap 301.

Disposition 9. In view of the above findings, I do find merits in the tenant’s application dated 17. 10. 2023 and proceed to make the following orders;-a.That the Respondent is hereby injuncted from interfering with the tenant’s quiet enjoyment and use of the suit premises.b.That the tenant will pay to the landlord the rent arrears of Kshs. 4,000/= and any other outstanding rent.c.That the OCS Manyatta police shall assist in the compliance with order (a) above.d.That each party shall bear their own costs.e.That the tenant’s complaint is allowed in the terms set out above and this matter is marked as closed.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 12TH DAY OF FEBRUARY 2024. HON. CYPRIAN MUGAMBICHAIRPERSON12. 2.2024