Penninah Mworia v Mohammud Jama [2021] KEBPRT 92 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO. E419 OF 2021 (NAIROBI)

PENNINAH MWORIA.............APPLICANT/TENANT

-VERSUS-

MOHAMMUD JAMA....LANDLORD RESPONDENT

RULING

The Background of the Dispute

1. The Applicant moved this court on the 13th of August 2021 under certificate of urgency seeking orders that the Tribunal does restore the applicant in the business premises and order that the Respondent repairs all the damages arising from a forceful eviction and not to interfere in any with the Applicant’s peaceful possession. In the alternative, the Respondent does pay Kshs 80,000/- being payment in lieu of notice and Kshs 700,000/- being refund of goodwill paid and a further Kshs 280,000/-.

2. The Respondent filed a replying affidavit sworn on 7th September 2021 and in response stated that the applicant left the premise on her own in August 2021 with rent arrears of 4 months. Her stock was moved by one of her employees to a shop nearby and therefore there exists no Landlord/Tenant relationship. The Landlord has attached a letter from the ODPP absolving her from shop breaking.

3. The Landlord filed submissions to the effect that there is no longer any Landlord Tenant relationship and this Tribunal as this is confirmed by the Tenant and therefore the reference and application ought to be struck off.

4. The Tenant also submitted on 3 issues, whether the Applicant was a Tenant at the time of filing this suit? whether the tenancy is controlled? and whether the Tribunal has jurisdiction to hear the matter?

Issues for Determination

5. Having considered the parties’ pleadings, affidavits and submissions and having considered the relevant legal framework, the following is the main issue that fall for determination before this Honourable Court:

Whether the Tribunal has the jurisdiction to deal with this matter?

6. From the documents before this Tribunal it is clear that indeed there was a Landlord/Tenant relationship which came to an abrupt end. The Landlord claims the Tenant was in arrears for 4 months and upon being requested to pay for the arrears she choose to move out it is not clear how this was done as no auctioneer’s proclamation has been attached and or demand letter by either party.

7. The Tenant claims she was forcefully evicted by the Landlord who took her goods and even reported the same to the police and attaches abstract and statement. This averment has been countered by a letter from the police stating there was no evidence of forceful eviction and subsequently no enough evidence to charge the Landlord for shop breaking on a balance of probabilities the Landlords averments appear more credible.

8. That said the Tribunal cannot close its eyes on the fact that the Tenant moved this court when she had moved out of the premises on her own volition and even took her goods away thus there existed no Landlord/Tenant relationship. This Tribunal must therefore do the right thing down its tools and dismiss both the reference and the application with costs to the Landlord.

9. Tenant at liberty to pick any other items still in the possession of the Landlord.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 20thday ofDecember, 2021 in the presence of Bukachifor the Applicant and in the absence of the Respondent.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL