Tulei v Nyambura [2025] KEBPRT 282 (KLR)

Tulei v Nyambura (Tribunal Case E089 of 2025) [2025] KEBPRT 282 (KLR) (23 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 282 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E089 of 2025

N Wahome, Chair & Joyce Murigi, Member

April 23, 2025

Between

Janet Khatonde Tulei

Tenant

and

Lucy Nyambura

Landlord

Ruling

1. This Ruling pertains to the Tenant’s Application dated 23/1/2025. The Application is anchored on Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301) hereinafter “the Act”. The tenant sought that the Landlord be compelled to re-connect water and electricity power supply to the demised premises and that she be allowed freedom of access thereof.

2. The Tenant further sought that the Landlady be restrained from in anyway interfering with her quiet possession of the demised premises. She prayed that the orders granted be enforced by the OCS Ruiru Police Station and also for costs of the application.

3. The Tenant had originated these proceedings by the reference dated 23/1/2025 and the same was also founded on Section 12(4) of the Act. The tenant’s grievances in the reference were that:-“The Landlord has threatened to evict me by issuing a verbal notice, disconnecting water and electricity power supply in my business contrary to Cap. 301 Laws of Kenya”.

4. The Tenant’s case from the reading of the reference, the application and the oral submissions made before this court on the 17/2/2025 is that:-i.She had rented five (5) shops from the landlord at an agreed monthly rent of Kshs.80,000/-.ii.Had paid all the accrued rent upto the month of February, 2025 and the landlady owed her Kshs.1,000,000/- used in renovations of the building.iii.The landlady had been harassing her and her clients and threatening her with eviction including a verbal notice to terminate her tenancy.iv.The landlady had also been disconnecting her water and electricity power supply thus impacting negatively on her business.v.The landlady had threatened to remove the doors and windows to the premises and had demolished her Makeshift kitchen.

5. In answer to the Tenant’s application and reference, the landlady filed the Replying Affidavit sworn by herself on the 5/2/2025. She also made oral submissions on the 17/2/2025 through her counsel Mr. Muiruri. Her evidence is that:-i.The Tenant owed rent in arrears at Kshs.338,300 water bills at Kshs.3,140. 40 and Garbage collection bill of Kshs.500/- as at 5/2/2025. ii.She had not harassed the tenant in anyway nor threatened to evict her but had only sought for a meeting with her to agree on the settlement of the rent in arrears (annexture LN-5).iii.The Tenant had erected a makeshift kitchen without her consent and which was destroying the building’s walls by the smoke residue deposits (Annexture LN-7) and LN-8).iv.The Tenant had make adjustments on the newly constructed building to suit her business needs and there was no agreement that she would be reimbursed for the expenses. The only reimbursement agreed on was for Kshs.9,000/- for installation of window panes and a door and which was done (Annextures LN-3 and LN-4).v.The Tenant’s suit and application were meant to defeat her rights to recover the rents in arrears and the same should be dismissed.vi.She had not disconnected power nor water as they were using the same meters with the Tenant.

6. After the oral submissions in court on the 17/2/2025, this court directed with the concurrence of the parties to have an inspector of this court visit the demised premises and prepare a report on the status of water and power supply at the demised premises.

7. The inspector m/s Kerina Owouchah prepared the report dated 26/2/2025. From the report, water and electricity power were restored into the demised premises on the 18/2/2025. At the time of the site visit on the 26/2/2025, the Tenant was in quiet possession of the demised premises and running her business.

8. This court’s inspector in the said report observed that:-“That the Tenant is still running the bar and/or club without any further interference as evidenced by the attached annextures 1(a)-(e ). I was duly informed that the premises did not have electricity power at the time of my inspection owing to the electricity blackout in the area which had been going on for sometime”.

9. From the foregoing, it is our view that the issues that arise for determination are the following:-i.Whether the Tenant’s Application dated 23/01/2025 has merit.ii.Which orders should this court make in this matter, andiii.Who should bear the costs of this suit.

10. On the issue of whether the application dated 23/1/2025 has merit, we should wish to observe that the Tenant has not pleaded for refund of the purported Kshs.1,000,000/- purported expense in refurbishment of the demised premises in either the application nor in the reference. That is a claim for special damages which must be particularly pleaded and strictly proved to accrue the attention of this court. It is not the case here and we would disregard the makeshift statements on the same.

11. The Tenant had also claimed of threats of eviction that had been issued to her verbally by the landlady. The date of the verbal threats is not given and the landlady has demonstrated that she only wrote a message to the Tenant to make good payment of rents that were in arrears (annexure LN-5). We therefore doubt from the evidence that there were such threats to terminate the Tenancy or evict the Tenant and would therefore not go into determination of the merits of such purported notice.

12. Indeed Section 107 and 109 of the evidence Act place the onus on the claimant to demonstrate existence of such facts as alleged in the application and reference herein. Section 107 provides that:-“whoever desire any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.

13. On the other hand Section 109 of the Act provides that:-“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person”.

14. We are however persuaded by the report of the inspector of this court that there was indeed disconnection of water and electricity power on the demised premises. According to the inspection report dated 26/2/2025, electricity power and water were only restored on the 18/2/2025. This was a day after the court ordered for the site inspection on the 17/2/2025.

15. It then follows that the Tenant had a right to seek for the intervention of this court on that particular issue under Section 12(4) of the Act. The same provides that:-“In addition to any other powers specifically conferred on it by or under this Act, A Tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the Tenant, and may make such order thereon as it deems fit”.

16. In the circumstances of this case we are guided to allow the Application in terms that the landlord shall allow the Tenant quiet possession of the demised premises and shall not in any way interfere with water and electricity supply thereof.

17. On the 2nd issue of which orders should this court make in this matter, we are guided by Section 12(1) (e ) of the Act which provides that:-“among the powers of the tribunal are to make orders, upon such terms and conditions as it thinks fit, for the recovery of possession and for the payment of arrears of rent and mesne profits, which orders may be applicable to any person, whether or not he is a tenant, being at any material time in occupation of the premises comprised in a controlled Tenancy”.

18. In our view, the landlady has been able to demonstrate that by 5/2/2025 the Tenant owed her rent in arrears at Kshs.338,300, Kshs.3,140. 40 in water fees and Kshs.500/- in garbage collection charges. This arrears in rent, water and garbage collection charges must have escalated as at today’s date in the event that the tenant has not worked towards liquidation of the same.

19. We would therefore pursuant to Section 12(1) (e ) and 12(4) of the Act direct that the Tenant settles all the rents in arrears, water and garbage collection charges by the 30th April 2025 and in default the landlord to levy distress in recovery of the same at the expense of the Tenant.

20. Having reached the above determination, we are persuaded that nothing is left of the reference herein dated 23/1/2025. The same had sought to restrain the landlord from evicting the Tenant and for restoration of water and electricity power supply at the premises and all the issues have conclusively been determined. We would therefore resolve the reference in the same terms with the application.

21. On the 3rd issue of costs, we appreciate that both parties have registered partial successes in this matter. we would therefore exercise our discretion under Section 12(1) k of the Act and direct that each party bear own costs of the suit.

22. In the final analysis, the orders that commend to us are that:-i.The Tenant shall be allowed quiet possession of the demised premises without any interference with the water and electricity supply thereof.ii.That the Tenant shall settle all the rents in arrears together with water and garbage collection fees on or before the 30/4/2025 and in default the landlady shall be at liberty to levy distress at the Tenant’s expense.iii.That the reference dated the 23/1/2025 is resolved in the same terms with the Application herein.iv.That each party shall bear own costs of this suit.Those are the orders of these court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF APRIL, 2025. HON. NDEGWA WAHOME MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL.BPRT.Ruling delivered in the presence of Counsel for the Landlord/Respondent and in the absence of the Tenant/Applicant.HON. NDEGWA WAHOME MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,