Peninah Musyoka & Elias Ojuok v Christopher Kyalo & Benjamin Kioko [2022] KEBPRT 50 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E563   OF 2021  (NAIROBI)

PENINAH MUSYOKA..............................................................1ST APPLICANT/TENANT

ELIAS OJUOK..........................................................................2ND APPLICANT/TENANT

VERSUS

CHRISTOPHER KYALO...............................................1ST RESPONDENT/LANDLORD

BENJAMIN KIOKO.............................................................................. 2ND RESPONDENT

RULING

1. This ruling arises from the motion dated 6th October 2021 in which the tenants are seeking in material part for an order compelling the Respondents to compensate for loss and damages accrued during the period which the suit premises was closed pending hearing and determination of the suit.

2. The tenants also sought for an order restraining the Respondents from evicting, locking out, harassing them or disconnecting power and water supply pending hearing of the application inter-partes.

3. The application is supported by the affidavit of Peninah Musyoka sworn on 6th October 2021 where she states that the suit premises is located at Umoja plot no. 190 owned by the 1st Respondent/Landlord where they pay Kshs.14,000/- per month.

4. The tenants had no rent arrears but the landlord was locking them out of the business premises with a case in point being on5th October 2021 when he locked the premises.  interim orders were given on 8th October 2021 by this Tribunal in favour of the tenant.

5. When the matter came up for inter-partes hearing on 19th October 2021, the application was allowed in absence of the Respondents after this Tribunal was satisfied with the issue of service.  A date for compliance with the orders was set on 16th November 2021.

6. On 1st November 2021, this Tribunal ordered that water to the suit premises be restored by Nairobi Water and Sewerage Co. Ltd with immediate effect.

7. On 2nd December 2021, the Tribunal upon presentations made by the tenant directed and ordered as follows:-

“1. Further hearing on 5th January 2022.

2. Tenant to file application on the reliefs sought in regard to water and electricity disconnections

3. Application to be served upon the Respondents.

4. In the meantime, payment of rent to the landlord is suspended until the Respondents comply with the orders of 16th November 2021 and reconnect water and electricity supply to the tenant.

The OCS, Buruburu Police Station to assist the tenant in compliance with the orders”..

8. On 5th January 2022, the Tribunal made the following orders in the presence of both the 1st tenant and 1st Respondent/Landlord:-

“(1) The orders of 2nd December 2021 are hereby vacated for reasons given by the 1st Respondent.

(2) Nairobi Water and Sewerage Company Limited shall connect water to the tenant using a sub-meter from the existing water meter in the name of Philip Nyamai.

(3) Mention on 2nd February 2022 to confirm compliance”.

9. Going by all the orders given in this matter, it would appear that the dispute relating to water connection was resolved through the order of 5th January 2022 and the tenants have not explained what became of implementation thereof by the Nairobi Water & Sewerage Company Limited.

10. The further affidavit by the 1st tenant sworn on 1st April 2021 is of no assistance as it does not address the foregoing issue.

11.  In the premises, no other order can be issued in favour of the tenants on the water connection issue which has already been addressed by the orders of 5th January 2021.

12. In the premises, the applicants will pursue implementation of the said order with Nairobi Water and Sewerage Co. Ltd and report back to this Tribunal.

13. in view of the foregoing, I shall make no other orders in regard to the matter before me since the question of loss of business allegedly suffered by the tenants can only be proved through pleadings and evidence in a full hearing.  No pleadings on the specific sum claimed nor proof thereof has been tendered to assist the Tribunal determine the said issue.

14. Parties shall be at liberty to move the Tribunal on the said issue upon compliance with order 11 of the Civil Procedure Rules, 2010.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10TH DAY OF FEBRUARY 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling delivered in absence of both parties.