Obwora v Kadima [2022] KEBPRT 240 (KLR)

Obwora v Kadima (Tribunal Case E009 of 2021) [2022] KEBPRT 240 (KLR) (Civ) (15 July 2022) (Judgment)

Neutral citation: [2022] KEBPRT 240 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E009 of 2021

Gakuhi Chege, Vice Chair

July 15, 2022

Between

Jacinta Akech Obwora

Landlord

and

Zablon Kenneth Kadima

Tenant

Judgment

1. Through a reference dated July 19, 2021, the landlord moved this tribunal on a complaint that the tenant failed to file any reference to oppose the termination notice dated March 23, 2021. He had also failed to pay rent arrears. The landlord therefore seeks for an order against the tenant to pay rent arrears and vacate the business premises.

2. The landlord had issued a tenancy notice dated 23/3/2021 seeking to terminate the tenancy herein with effect from June 1, 2021 on grounds that the tenant was in breach of tenancy/lease by subletting, major repairs landscaping and rent arrears. The tenant did not file a reference against the tenancy notice.

3. Parties were directed to comply with order 11, Civil Procedure Rules by filing and exchanging witnesses statements and duly paginated list and copies of all documents to be relied upon during the hearing within 14 days from from October 29, 2021. The landlord complied with the directions of May 31, 2022 but the tenant did not.

4. On June 3, 2022, the matter came up for hearing when counsel submitted in reliance on the documents filed that the tenant admitted being in arrears of Kshs 150,000/- under the landlord’s document no 3. He cleared the said arrears and by the time of hearing he was again in arrears in respect of the months of May and June 2022.

5. The landlord’s notice was based inter-alia on non-payment of rent and subletting. The tenant is said to have admitted the subletting in a letter. He constructed a matatu office on the suit premises. He sublet the premises as a bookshop against the tenancy agreement marked exhibit 1.

6. On his part, the tenant stated that he had not filed his documents neither did he file a reference against the tenancy notice. He denied having sublet the suit premises and confirmed having paid the arrears. He stated that all the businesses run under the name fddis investments were his and included puncture repairs, photocopying, mpesa, sodas and transport business. He denied construction of any structure outside the premises. He however admitted having been in rent arrears of three (3) months. His monthly rent is Kshs 50,000/-.

7. The tenant confirmed having received notice to terminate tenancy but did not file a reference. He said that he was ignorant.

8. I am now required to determine the following issues:-(a)Whether the landlord’s notice to terminate tenancy ought to be upheld or dismissed.(b)Whether the landlord is entitled to vacant possession and recovery of arrears from the tenant.(c)Who is liable to pay costs?.

9. Under section 2(4) of cap 301, Laws of Kenya, this tribunal is required to investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant and may make such order thereon as it deems fit:

10. Section 6(1) of cap 301 provides as follows:-“(1) A receiving party who wishes to oppose a tenancy notice, and who has notified the requesting party under section 4(5) of this Act that he does not agree to comply with the tenancy notice may before the date upon which such notice is to take effect refer the matter to a tribunal whereupon such notice shall be of no effect until, and subject to the determination of the reference by the tribunal”.

11. The tenant herein admitted that he was served with the tenancy notice but did not file a reference on account of ignorance. It is trite law that ignorance of the law is not a defence. He has not moved this tribunal for extension of time limited for filing a reference. Consequently the notice took effect on June 1, 2021 as expressed therein.

12. Section 10 of the saidAct provides that where the landlord has served a notice in accordance with the requirements of 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 the 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.

13. It follows that the tenant having failed to challenge the landlord’s termination notice and the notice having taken effect on June 1, 2021, he became a trespasser in the premises and the landlord is entitled to vacant possession under section 12(1) (e ) of the Act.

14. The landlord confirmed that the tenant paid the three (3) months’ rent which was in arrears. However, the tenant had not paid rent for May and June 2022 by the last hearing date. I shall direct that the tenant pays any rent due to the landlord by July 31, 2022 when he is expected to have vacated from the suit premises.

15. As regards costs, the same are in the court’s discretion but always follow the event unless for good reasons otherwise ordered. I have no reasons to deny the landlord costs of the reference.

16. In conclusion therefore, the following final orders commend to me:-(i) The landlord’s tenancy notice dated 23/3/2021 is hereby approved and the tenant’s occupation of the suit premises known as plot no Busia Township/267 is hereby terminated.(ii) The tenant shall deliver vacant possession of the suit premises on or before July 31, 2022 and in default shall be evicted therefrom by a lincensed auctioneer who shall be provided with security by the OCS, Busia police station.(iii) The tenant shall clear any rent arrears for the months of May, June and July 2022 before July 31, 2022 and in default the landlord shall be entitled to use lawful means to recover the same.(iv) The landlord is awarded costs of Kshs 30,000/- against the tenant for this reference.It is so ordered.

JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF JULY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALJudgment delivered in absence of the parties.