Waihwa v Nyahururu Women Group [2024] KEBPRT 6 (KLR)

Waihwa v Nyahururu Women Group (Tribunal Case E628 of 2023) [2024] KEBPRT 6 (KLR) (16 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 6 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E628 of 2023

Andrew Muma, Ag. Chair

January 16, 2024

Between

Mary Wamuci Waihwa

Tenant

and

Nyahururu Women Group

Landlord

Ruling

1. The Tenant/Applicant (hereinafter referred to as “the Tenant”) has rented out the business premises known as Plot No. 6585/456NM Nyahururu Municipality (hereinafter referred to as “the premises”).

2. The firm of Nderitu Komu & Co. Advocates appears for the Tenant

3. The Landlord/Respondent (hereinafter referred to as “the Landlord”) has let out the premises to the Tenant.

4. The firm of Raydon Mwangi & Associates Advocates appears for the Landlord.

Dispute Background 5. The Tenant is aggrieved by the Landlord’s Notice of Termination of Tenancy. The Landlord accuses the Tenant of being difficult to deal with and of failing to pay rent when it falls due which allegations are opposed by the Tenant.

The Tenant’s Case 6. The Tenant approached this Tribunal vide a Reference dated 21st June 2023 and an application dated 20th July 2023.

7. The Tenant states that the Landlord’s allegations that she has rent arrears are misleading. She states that she only defaulted in payment of rent for a few months due to the covid-19 pandemic but she settled the arrears as soon as her business started picking up.

8. The Tenant additionally filed a Supplementary Affidavit dated 28th September 2023 where she buttressed her position that she has no arrears and that she is not a difficult tenant.

9. The Tenant filed Submissions dated 25th September 2023 in support of her Reference and application.

The Landlord’s Case 10. The Landlord filed a Replying Affidavit dated 14th September 2023 where the stated they opposed the Tenant’s application and deponed that the Tenant was in arrears totaling to Kshs. 156,000/= as at September 2023.

11. The Landlord also stated that the Tenant had only partly paid the outstanding rent arrears upon issuance of the Notice of Termination of Tenancy dated 29th March 2023.

Issues For Determination 12. From the background and the parties’ respective cases provided hereinabove, the following issues are ripe for determination:i.Whether the Notice of Termination of Tenancy is valid?

Analysis And Determination i. Whether The Notice Of Termination Of Tenancy Is Valid?? 13. I have given full consideration to the documents filed by the parties to this Reference. Section 4 (2) of the Landlord and Tenants (Hotels, Shops and Catering Establishments) Act Cap 301 (“the Act”) provides as follows;“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.”

14. In the present matter, it not disputed that a Notice of Termination of Tenancy was issued by the Landlord. However, the date of the said Notice is not clear. This is because the Tenant states that the Notice was dated 6th March 2023 while the Landlord states that it was dated 29th March 2023.

15. Additionally, none of the parties produced the said Notice as evidence. It is therefore impossible for this Tribunal to determine its validity.

16. That stated, the grounds upon which a Notice of Termination of Tenancy may issue are well stipulated under the Act and for ease of reference, I shall reiterate the specific ground that is relevant to the present case:7. Grounds on which landlord may seek to terminate tenancy1. Where under section 4 of this Act served a notice of termination of a controlled tenancy on the tenant, the grounds on which the landlord seeks to terminate such tenancy may be such of the following grounds as are stated in the aforesaid notice—(b)that the tenant has defaulted in paying rent for a period of two months after such rent has become due or payable or has persistently delayed in paying rent which has become due or payable “emphasis added”

17. I am of the considered view that the Tenant has no arrears as of September 2023. The Tenant has adduced evidence that clearly demonstrates that she has paid all the rent required during the period in question. Additionally, the Landlord did not provide statements that controverted the Tenant’s evidence.

18. Be that as it may, it is clear that the Tenant has persistently delayed in honoring her obligations as a Tenant as demonstrated by her Mpesa statements. For instance, she failed to pay rent for June 2022 but subsequently paid the same together with the July rent. A similar pattern is seen in October 2022, December 2022 and March 2023.

19. I am therefore satisfied that the delay in paying rent on a monthly basis as agreed is prejudicial to the Landlord since they rely on the premises to generate income.

Determination 20. In the upshot, I find that this Tribunal partially allows the Reference and issues the following orders:a.The Tenant is hereby ordered to pay the agreed monthly rent of Kshs. 26,000/= by the 10th day of every subsequent month, failure to which the Landlord is at Liberty to issue fresh notices and distress without any further reference to the Tribunal.b.The Tenant is hereby ordered to pay the agreed rent from October 2023 to date if she has not already done so;

HON A. MUMAAG CHAIR/MEMBER.........................HON JACKSON ROPMEMBERBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered at Nairobi 16th Day of January 2024 in the absence of parties.HON A. MUMAAG CHAIR/MEMBER.........................HON JACKSON ROPMEMBERBUSINESS PREMISES RENT TRIBUNAL