Patrick Nyamweya Simba v Jerusha Auma Ogwari [2022] KEBPRT 102 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 85 OF 2021 (MOMBASA)

PATRICK NYAMWEYA SIMBA........TENANT/APPLICANT

VERSUS

JERUSHA AUMA OGWARI.....LANDLADY/RESPONDENT

RULING

1. The Tenant’s application dated 5th April 2021 seeks orders restraining the Respondent from levying distress against the Respondent, removing the door to the business premises or in any manner whatsoever interfering with the Tenant’s quiet occupation and lawful enjoyment of the suit premises at Mwansia Likoni within Mombasa County.

2. The application has also prayed for police assistance in the execution of the orders sought and the costs of the application.

3. The application is based on the grounds shown on the face of the said application and the affidavit of Patrick Nyamweya Simba which I summarize as follows hereunder;

a. That the Tenant pays rent of Kshs 7,000/- per month.

b. That the Tenant took possession of the premises in August 2020.

c. That the Respondent does not issue any receipts for money paid for rent.

d. That on 20th March 2021, the Landlady broke into the suit premises and removed the Tenant’s padlock replacing it with her own.  The Landlady has refused to open the premises.

e. That when the premises was locked, it had goods belonging to the Applicant’s customers.

f. That the Landlord was demanding the sum of Kshs 30,000/- as rent arrears.

4. The application is opposed.  The Respondent has filed a replying affidavit which I summarize as follows;

a. That she is a stranger to the contents of paragraph 3 to 9 of the Applicant’s supporting affidavit.

b. That the Respondent never entered into any agreement allowing the Tenant to undertake any wiring of the business premises.

c. That the Landlord denies breaking into the Applicant’s business premises.

d. That the Landlord denies breaking into the Applicant’s business premises and/or locking the same.

e. That the Tenant moved out from the suit premises and left some belongings therein.  His moving out was without notice to the Landlady.

f. That when the Tenant came back for the goods that remained behind, the Respondent demanded of him to settle the rent arrears.

5. It is clear from the affidavit of the Respondent that the Tenant has already left the premises.  The Tenant has carried away his belongings in the suit premises and the only items that the Respondent is holding on to are the doors (or door) belonging to a customer of the Applicant.

6. There no longer exists a Landlord and Tenant relationship between the parties herein.  This is so because the Tenant has not in any material manner controverted the averment at paragraph 5 of the Respondents replying affidavit which is in the following terms;

5. “That in further reply to paragraph 5 of the supporting affidavit, I wish to state that the Applicant without notice and without paying his outstanding rent arrears moved out from the said premises leaving behind some of his belongings after being captured by my agent while escaping with the arrears.”

7. In the circumstances, the Tribunal lacks the requisite jurisdiction to hear and determine this dispute.  Parties are to pursue their claims against each other in a civil forum if they so wish.

8. There being no jurisdiction on the part of the Tribunal, the application dated 5th April 2021 and the Tenant’s (undated) reference are both dismissed with costs to the Landlady assessed at Kshs 25,000/-.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 6TH DAY OF JANUARY, 2022 IN THE ABSENCE OF THE PARTIES.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL