Robert Wanyonyi Wopicho v Walter Weswa Mulombi [2021] KEBPRT 195 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E005 OF 2021 (KAKAMEGA)

ROBERT WANYONYI WOPICHO......LANDLORD/APPLICANT

VERSUS

WALTER WESWA MULOMBI...............TENANT/RESPONDENT

RULING

1. The Landlord’s/Applicant’s application dated 5th July 2021 seeks the following orders;

a. Spent

b. That it pleases the court to grant leave to the Applicant/Landlord to levy distress for rent arrears amounting to Kshs 30,000/-, evict the Tenant and reenter the premises.

c. That it pleases the honourable court to order that auctioneer do forcefully break into the premises to effect distress.

d. That the OCS Sirisia Police Station to ensure compliance of the orders.

e. Costs.

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

a. That the Applicant bought the suit premises when it was already developed.

b. That the Applicant has by letter introduced himself to the Tenant as the new Landlord and new terms of tenancy communicated.

c. That the Tenant is in rent arrears amounting to Kshs 30,000/-.

d. That the Landlord/Applicant has issued a notice to terminate the tenancy dated 25th March 2021 but the Tenant is adamant to vacate the premises.

e. That the Landlord has suffered long enough and would like to have the Tenant evicted.

f. That the Applicant needs to have the premises vacated for better services and income.

g. That the demised premises is in a bad state for human occupation and needs a complete overhaul.  It was erected in 1943.

3. The application was served upon the Respondent who has not filed any responses.  The Applicant has filed an affidavit of service sworn by one Charles Alumasa on 2nd August 2021.  I have perused the same and I am satisfied that the Respondent was duly served.

4. The only issue which arises for determination in this application is whether the Applicant is entitled to the orders sought in his application dated 5th July 2021.

5. The relationship between the parties herein is not governed by any written agreement, at least none has been provided by the Applicant.  It is therefore safe to state that the tenancy herein is a controlled tenancy under section 2(1) (a) of Cap 301.

6. The Applicant seeks at prayer b of his application, leave to levy distress and eviction of the Tenant.  The reasons he has given are the nonpayment of rent and the need to “overhaul” the demised premises.  This being a controlled tenancy, the Applicant was obligated to issue a tenancy notice under section 4(2) of Cap 301 of the Laws of Kenya which section is in the following terms:

4(2) A Landlord who wishes to terminate a controlled tenancy or to alter to the detriment of the Tenant any term or condition in or right or service enjoyed by the Tenant under such a tenancy shall give notice in that behalf to the Tenant in the prescribed form.

7. The Landlord has stated at paragraph 6 of his supporting affidavit that he issued a notice to terminate tenancy through his advocates on 25th March 2021.  The said notice is annexed as RWN – 4 in the said affidavit.  The letter dated 25th March 2021 does not meet the requirements of the notice contemplated under section 4(2)(5) of Cap 301.  It is not in the prescribed form and does not provide for the details required under section 4(5) of the Act, Cap 301 of the Laws of Kenya.  The same is defective and of no effect.

8. The prayer for eviction cannot therefore be allowed in the circumstances.  Granting the same would amount to illegally terminating the Tenant’s controlled tenancy.

9. On the issue of distress for rent, I find that the Applicant’s averments as to the rent owing have not been challenged.  As at 25th March 2021 when the Applicant wrote to the Tenant, rent is indicated as having been outstanding/unpaid for three months.

10. The instant application was filed in July 2021. The rent has clearly not been paid for six months.

11. In the premises, I make the following orders;

a. That the Landlord/Applicant is granted leave to levy distress for rent arrears owing as at the date of this ruling.

b. That the prayer for eviction against the Tenant is declined.

c. That the OCS Sirisia Police Station shall ensure compliance with these orders.

d. That the Tenant will bear the costs of this application.

e. That the Applicant’s reference dated 6th July 2021 is allowed only to the extent of the above orders.

f. This matter is marked as closed.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 12TH DAY OF OCTOBER, 2021 IN THE ABSENCE OF THE PARTIES.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL