Philip Otiende Adundo v Mary Ohinga Otieno [2021] KEBPRT 109 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL AT KISUMU

TRIBUNAL CASE NO. E001 OF 2021

PHILIP OTIENDE ADUNDO.................................................TENANT/APPLICANT

VERSUS

MARY OHINGA OTIENO .......................................LANDLORD/ RESPONDENT

JUDGMENT

A.  Parties and Representatives

1.   The Applicant Philip Otiende the Tenant rented space on KSM /MANYATTA ‘A’/1084 for the business (hereinafter known as the ‘tenant’)

2.   The firm of S.M Onyango & Associates Advocates represent the Tenant/Applicant in this matter. sonyango72@gmail.com

3.   The respondent is the Landlord and owner of KSM /MANYATTA ‘A’/1084 rented out to the tenants (hereinafter the landlord).

4.   The Landlord/Applicant has not entered appearance since the commencement of this matter.

B.  The Dispute Background

5.   The Tenant and the Landlord entered into a tenancy agreement on 8th May 2018 and agreed to payment of rent at the rate of Kshs. 40,000 per month.

6.   On 20th May 2021 the Respondent/Landlady visited the tenant in the suit premises and demanded that the Tenant vacate the premises without giving reasons and notice as required.

7.   On 11th June 2021 the Tenant moved this Tribunal by way of reference and notice of motion under certificate of urgency dated 8th June 2021 filed under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Tenant was seeking amongst other orders that pending the hearing and determination of the application that the tribunal restrain the Respondent/Landlady and her agents from evicting harassing closing the premises and/or in any way interfering with the Tenant’s quiet occupation and operation of their business premises.

8.   On 22nd June 2021 the Tribunal ordered that the Respondent/Landlady and her agents be restrained from evicting harassing closing the premises and /or in any way interfering with the tenant’s quiet occupation and operation of their business premises and that the application be served for inter partes hearing on 7th July 2021.

C.  The Tenant’s Claim

9.   The Tenant filed a reference dated 11th June 2021 and a notice of motion under certificate of urgency dated 8th June 2021 filed under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301.

10. The Tenant has also filed a witness statement dated 7th June 2021 and written submissions.

D.  The Landlord’s Claim

11. From the commencement of this matter the Landlady has failed to enter appearance and has not put in any documents in opposition of the tenant’s application and reference

E.   Analysis and Findings

Whether the Tenant/applicant is entitled to the orders sought?

12. The Tenant’s reference and application dated 11th June 2021 and 8th June 2021 respectively have not been opposed by the Landlord and as a result it is the contention of this Tribunal that there is no legal justification as to why the Tenant should not be granted the orders sought.

13. The Tenant has undertaken due diligence to ensure the participation of the Landlady in this matter which is evidenced by the affidavit of service dated 7th September 2021.

14. Based on the above the Tribunal is persuaded to grant the orders sought by the Tenant as prayed.

F.   Orders

a)   The upshot is that the Tenant’s reference dated 11th June 2021is granted as prayed.

b)   The orders dated 7th July 2021 granting the Tenant’s application dated 8th June 2021remain in force.

c)   The tenant shall keep paying rent at the rate of Kshs. 40,000/- per month as and when it falls due in default landlord is at liberty to distress.

d)  Officer Commanding Station Kisumu Central Police Station to ensure compliance with the above orders.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 1ST DAY OF DECEMBER, 2021 IN THE ABSENCE OF THE PARTIES.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL