Victor Samson v Jacinta Wanjui Wangai [2019] KEBPRT 3 (KLR)
Full Case Text
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
TRIBUNAL CASE NO. 79 OF 2019 (MOMBASA)
VICTOR SAMSON.....................................................APPLICANT/TENANT
VERSUS
JACINTA WANJUI WANGAI........................RESPONDENT/LANDLORD
JUDGEMENT
The Tenant/Applicant on 10th April 2019 filed a reference under section 12 (4) of Cap 301and also filed a notice of motion under a certificate of urgency seeking interim mandatory orders. The Tribunal upon hearing the Tenant ex-parte and upon perusal of all the pleadings issued interim orders on 11th April 2019.
The Tenant is in occupation of the suit premises pursuant to the order of the Tribunal issued on 11th April 2019. The parties to the reference have given evidence which is in record and the advocates of the parties have filed written submissions which are on record and which the Tribunal has read in details. The dispute between the parties is simple to resolve as the basic facts in this matter are not in dispute.
The following facts are agreed from the evidence on record.
1. On 26th March 2019, the Tenant and the Landlord entered into what they called rent agreement in which the parties agreed as hereunder;
“I Jacinta Wangui have received shs 105,000 (one hundred and five thousand shillings) from Victor Samson for rent.
- Deposit 2 months @ 30,000 (thirty thousand).
- One month rent of shs 15,000 in advance.
- The other 60,000 (sixty thousand), the Tenant will be paying shs 10,000 per month for twelve months”.
The above agreement was witnessed by one Jemimah Kibe. For all practical purposes, the above document qualifies as a home made Tenancy agreement.
2. As at 26th March 2019 when the parties signed the rent agreement, the suit premises were not vacant and was occupied by a Mr Omar who promised to vacate the premises.
3. That Mr Omar the Tenant who was in occupation of the suit premises vacated on or before 5th April 2019.
4. That on 7th April 2019 the Landlord paid a sum of shs 70,000 by mpesa to the Tenant because she had changed her mind and wanted to use the premises for her own use as a butchery. The Tenant referred the matter to the police and on 10th April 2019 filed the reference before the Tribunal. The Tribunal issued orders on 11th April 2019. The padlock which was in the suit premises was removed on 1st May 2019in the presence of the OCS of the local area. The Tenant is now in the premises and carrying on business.
The issue of the Tribunal is whether the Tenant is in occupation of the premises as a Tenant or a Trespasser.
The Tribunal upon consideration of the written submissions of the advocate of the parties and the evidence on record, the Tribunal makes the following findings;
1. That the Tenant took possession of the suit premises on 1st May 2019 pursuant to the court order of the Tribunal issued on 11th April 2019.
2. The Tenant was entitled to take possession of the premises after Mr Omar had vacated the premises pursuant to the Rent/Tenancy agreement dated 26th March 2019.
3. The Landlord purported to unilaterally rescind the agreement entered on 26th March 2019 by refunding a sum of shs 70,000 to the Tenant on 7th April 2019 when the Tenant declined.
4. The Tribunal is satisfied that there is a Landlord and Tenant relationship between the parties and the Tenancy is controlled within the meaning of section 2 of Cap 301. The Tribunal is in total agreement with the submissions of the advocate for the Tenant in respect of the Tenancy agreement. In the light of the above findings, the Tribunal makes the following orders;
1. The Tenant’s application dated 10th April 2019 and the complaint dated 10th April 2019are allowed.
2. Prayers 2 and 3 of the notice of motion dated 10th April 2019 shall remain in force until when the Tenancy between the parties shall be terminated by mutual consent or pursuant to a notice which is duly served under section 4(2) of Cap 301.
3. The Tenant shall pay rent to the Landlord from May 2019 at the rate agreed in the Tenancy agreement dated 26th March 2019.
4. In the circumstances of this case, each party shall bear its own costs.
Judgement delivered this 5th day of July 2019 in the presence of Mutisya holding brief for Odongo for the Tenant. Advocate for the Landlord absent.
MBICHI MBOROKI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL