Patrick Ng’ang’a Kiarie v Dominic Ng’ang’a [2021] KEBPRT 304 (KLR) | Controlled Tenancy | Esheria

Patrick Ng’ang’a Kiarie v Dominic Ng’ang’a [2021] KEBPRT 304 (KLR)

Full Case Text

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 15 OF 2021 (NAKURU)

PATRICK NG’ANG’A KIARIE...LANDLORD/APPLICANT

VERSUS

DOMINIC NG’ANG’A....................TENANT/RESPONDENT

RULING

1. The Landlord’s notice of motion application dated 4th February 2021 seeks the following orders;

a. Spent.

b. That the Landlord be allowed to break into the suit premises plot No. Nakuru Municipality Block 5/527 in Nakuru Town.

c. That the Applicant be granted leave to levy distress the items therein as the rent has accumulated to a total sum of Kshs 148,000/- being rent for twenty five months from February 2019 to February 2021 at the rate of Kshs 6,000/- per month.

d. That the OCS Nakuru Railways Police Station to ensure compliance with these orders.

2. The grounds upon which the application is brought and the affidavit in support thereof may be summarized as follows;

a That the Tenant has disappeared and locked the suit premises.

b. That the Tenant has not paid rent for twenty-five months amounting to Kshs 148,000/-.

c. The whereabouts of the Tenant are unknown.

d. That the Landlord is the owner of the business premises.

e That the Applicant cannot let the premises to another Tenant as the same remains closed and the rent remains unpaid.

3. The application is opposed.  The Tenant/Respondent has sworn a replying affidavit which I proceed to summarize as follows;

a. That the Tenant was in the demised premises from1990 until February 2021 when he moved out of the premises.

b. That the Tenant moved out of the premises due to frustrations by the Landlord.

c. That the Landlord owes the Tenant Kshs 100,000/- which the Tenant had paid as goodwill.

d. That it is not true that the Tenant closed the demised premises.

4. The Landlord has filed a further affidavit which I also summarize as follows;

a. That the Tenant was in the demised premises from 1990 until February 2021.

b. That the Landlord denies frustrating the Tenant and further denies owing the Tenant the sum of Kshs 100,000/-.

c. That on 13th June 2021, the Respondent removed his belongings from the suit premises and the Landlord is now demanding rent in the sum of Kshs 172,000/- from the Tenant.

d. That the claim for vacant possession is dropped as the Tenant has vacated the premises.

5. It is common ground that the Tenant/Respondent is no longer in the demised premises.  He has since left.  The only issue for determination is therefore whether the Landlord is entitled to break into the premises and levy distress for rent in the sum of Kshs 172,000 as expressed above.

6. It is not clear from the pleadings when the Tenant left the demised premises.  The Tenant states that he left the demised premises in February 2021, while the Landlord in his affidavit sworn on 4th February 2021, he states at paragraph 3 thereof that the Tenant disappeared from the suit premises in February 2019.

7. The suit herein was filed in February 2021, if the Tenant had disappeared in 2019, one would have expected that the Landlord would have sought legal assistance sooner.  The Tenant’s stated date of February 2021 looks more probable as it seems to coincide with the time the suit was filed at the Tribunal.

8. The Landlord claims Kshs 172,000/- from the Tenant.  The Tenant has on the other hand denied owing the Landlord any money and instead, himself claims the sum of Kshs 100,000/- from the Landlord being the goodwill paid for the premises.  The Landlord has too denied the Tenant’s claim on the basis that no documentary evidence in support thereof has been tendered.  I am in the circumstances faced with a claim for Kshs 172,000/- and a counterclaim of Kshs 100,000/- both of which are denied.  The question that arises in the circumstances is whether either of the parties to this dispute has proved their respective money claims.

9. Section 3(3) of Cap 301 provides as follows;

“The Landlord of a controlled tenancy shall keep a rent book in the prescribed form of which he shall provide a copy for the Tenant and in which shall be maintained a record, authenticated in the prescribed manner of the particulars of the parties to the tenancy and the premises comprised therein and the details of all payments of Rent and the details of all payments of Rent and of all repairs carried out in the premises.”

10. The requirement to keep a rent book is in mandatory terms.  In my view, it was meant to avoid the exact position that the Landlord herein finds himself.  It is meant to avoid disputes as to rent paid, the identity of the parties to the tenancy and a clarity of any repairs carried out and possibly at whose cost.

11. The Landlord/Applicant herein has not placed before me the rent book demanded by section 3(3) above, neither has the Landlord provided any evidence of rent accounts between himself and the Tenant by way of receipts or any other evidence of at least the rent paid and at what point rent stopped being paid.  It is a general principle of law that a party who alleges proves.  I find that the Landlord has not discharged this burden.  What we have on record are bare averments countered by equally bare denials from the Tenant.  On the material placed before me, I am unable to find that the Landlord is owed any rent by the Tenant.

12. The Tenant’s claim for Kshs 100,000/- is denied by the Landlord.  the Tenant for himself, has only stated the amount owed.  He has not placed any evidence before the Tribunal to prove that he paid the money or that if he paid the same, he is entitled to any refund.  I find this claim not sufficiently proved.

13. In the circumstances, I will make the following orders;

a. That the Landlord is hereby allowed to break into the suit premises (if they are still closed) known as Nakuru Municipality Block 5/257 in Nakuru Townand gain possession of the same.

b. Each party will bear its own costs.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 21STDAY OF SEPTEMBER, 2021 IN THE PRESENCE OF PATRICK NG’ANG’A LANDLORDAND IN THE ABSENCE OF THETENANT.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL