Nicholas Nzioka Muinde v Brigit Wanyoike [2022] KEBPRT 43 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E642  OF 2021 (NAIROBI)

NICHOLAS NZIOKA MUINDE......................................TENANT/APPLICANT

VERSUS

BRIGIT WANYOIKE.............................................LANDLADY/RESPONDENT

RULING

1. This ruling relates to the motion dated 1st March 2021 in which the tenant/applicant is seeking in material part for restraining orders against the landlord from interfering with his quiet occupation and lawful enjoyment of the suit premises at Huruma pending hearing of the case.

2. The application is supported by the affidavit of the applicant sworn on even date and the grounds on the face thereof.

3. What precipitated the dispute is closure of the business premises by the landlord with the assistance of area chief contrary to provisions of Cap. 301 Laws of Kenya.  A verbal eviction notice was allegedly issued to the tenant.

4. A reopening order was made ex-parte on 2nd November 2021 and the same was complied with.

5. The application is opposed through the replying affidavit of the Respondent sworn on 16th November 2021 wherein it is deposed that the tenant was as at October 2021 in rent arrears of Kshs.30,000/- for the months of June- October 2021.

6. The matter was reported to the local chief and the tenant was summoned as a result of which the tenant was given one (1) month’s notice to vacate.  The said notice is annexed to the replying affidavit and marked ‘BW-1’.  The tenant failed to vacate.

7. As at November 2021, the tenant had accumulated rent of Kshs.36,000/- which he refused to pay.  The landlord states that he has obligations to meet and is unable to do so on account of the tenant’s refusal to pay rent.

8. The landlord deposes that the tenant is insultive and this is very distressful to him and as such he ought to vacate from the suit premises.

9. The tenant filed a further affidavit sworn on a date which is not clear as the last page thereof is missing from the copy uploaded on the e-filing portal.

10. He admits having been in arrears and refers to payments totaling to Kshs.11,000/- in the month of October 2021 and Kshs.10,000/- paid upon being summoned by the chief to make a total of Kshs.21,000/-.

11. He denies being troublesome and states that the area chief had no jurisdiction or powers to issue a vacation notice and the same is null and void.

12. The tenant states that he owed Kshs.19,000/- as at January 2022.  He states that his business was closed from 26/10/2021 to 10/11/2021 as a result of which he suffered loss of Kshs.12,000/- in lost stock and Kshs.800/- per day in expected profits.

13. The application was directed to be disposed of by way of written submissions but only the tenant complied.

14. I am called upon to determine the following issues:-

(a) Whether the applicant is entitled to the orders sought.

(b) Who is liable to pay costs?.

15. I have looked at all the materials placed before me and noted that there is no dispute that the tenant’s business premises was closed as a result of unpaid rent arrears by the landlord under the chief’s directions.

16. Closure of a business premises is not a means of enforcing rent payment under Cap. 301, Laws of Kenya.  The same is no doubt illegal.

17. The tenant on the other hand admits having been indebted to the landlord and as at January 2022, he admits owing Kshs.19,000.  He has not given a proposal on when the said arrears will be settled.

18. I have also seen the notice to vacate marked ‘BW-1’ and the same does not comply with section 4(2) of Cap. 301, Laws of Kenya.  It is indeed null and void for all purposes and cannot terminate the tenancy of a protected tenant.

19. In the premises, I am satisfied that the tenant has satisfied conditions for the grant of an injunction espoused in the case of Giella – vs- Cassman Brown & Co. Ltd (1973) EA 358.

20. The tenant filed his reference dated 1st November 2021 and from its contents, it raises the same issues raised in the application and the same fully  was addressed by the ex-parte orders given on 2/11/2021.  As such the same is marked as spent.

21. In the circumstances, the final orders that commend to me are:-

(i) The application dated 1st November 2021 is allowed and the landlord and her agents are restrained from evicting, closing, disconnecting electricity or in any other way interfering with the tenants use and lawful enjoyment of the suit premises.

(ii) The tenant shall however clear all the rent arrears owing to the landlord together with current monthly rent within the next Thirty (30) days hereof failing which the landlord shall be at liberty to use legal means to recover the same.

(iii) The landlord’s notice to vacate is hereby declared null and void and of no effect.

(iv) The landlord shall be at liberty to serve the prescribed notice to terminate tenancy under section 4(2) of Cap. 301, Laws of Kenya.

(v) Each party shall bear own costs of the suit.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 11THDAY OF MARCH  2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Kingara for the Respondent/Landlord

No appearance for the Tenant/Applicant