Wangari & another v Gicharu [2024] KEBPRT 63 (KLR)

Wangari & another v Gicharu (Tribunal Case E163 of 2023) [2024] KEBPRT 63 (KLR) (18 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 63 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E163 of 2023

Andrew Muma, Ag. Chair & J Rop, Member

January 18, 2024

Between

Lilian Wangari

1st Applicant

Peter Maina Mwangi

2nd Applicant

and

Geofery Gicharu

Respondent

Ruling

A. Parties And Representatives 1. The 1st and 2nd Applicants, Lilian Wangari and Peter Maina Mwangi, are the Tenants who rented space for business at Plot No. 315 Mabanda in Gatanga. (hereinafter known as the ‘the 1st Tenant and 2nd Tenant respectively’).

2. The Firm of Daniel Henry & Co. Advocates appears for Applicants/Tenants.

3. The Respondent, Geofery Gicharu, is the Landlord and owner of property known as Plot No. 315 Mabanda in Gatanga (hereinafter known as the ‘the suit premises’).

4. The Firm of Maina, Omore & Mwaura Advocates appears for Respondent/Landlord.

B. The Dispute Background 5. The Tenant approached this Tribunal vide a Reference and Application both dated 8th February 2023 seeking among other orders that pending the hearing and determination of the reference, the Tribunal orders the Landlord to reopen the business premises and in default, order for breaking of the premises to allow entry of the 1st Tenant, to remove the barbed wire fence on the frontage of the 1st Tenant’s entrance and to issue proof of payment for all months the Landlord had received payments from the Tenants.

6. Vide an Order issued on 15th February 2023, the Tribunal issued an Order directing that the application be served upon the parties ahead of the hearing set for 24th February 2023.

7. The Tribunal directed for a Rent Inspection to investigate and establish the surrounding environment and ascertain whether the Tenant were in occupation of the suit premises. The Inspection Report revealed that one of the shops of the 1st Tenant had been rented to another Tenant (“Tenant 3”) who was enjoying the developments done by the 1st Tenant.

8. Upon receipt of the Inspection Report, the Tribunal issued the following orders, among others:a.The Tenant in shop No.3 to prepare list of damages and costs for assessment as shop has been given to a 3rd Party.b.The Tenant in Shop No.1 to be provided with a statement of account of amount owing if any and/or reason for locking/interfering.c.Tenant 2 can take back his items on the shop and vacate by 15th April 2023 and file assessment of costs and damages.d.The Inspection Report to be released to the parties.

C. Tenant’s Case 9. The Tenants claim that they entered into a lease agreement with the Landlord in which they rented shops for business in the suit premises owned by the Landlord.

10. The 1st Tenant claims that she rented two shops in which she operates a hardware shop identified as Liwa Hardware and the entire frontage where she displays her hardware merchandise at a cumulative monthly rent of KShs. 11,000 payable on or before the 10th day of every month.

11. The 2nd Tenant avers that she rented one shop in which she operates a shop identified as Liwa Wines & Spirits at a monthly rent of KShs. 9,000 on or before the 10th day of very month.

12. The Tenants contend that they were faithful in the payment of rent until 1st of January when they found that the Landlord had locked the 2nd Tenant’s shop using another padlock claiming that the 2nd Tenant was in rent arrears. The 2nd Tenant claims that despite paying the demanded rent, the Landlord refused and/or declined to open the 2nd Tenant’s shop.

13. As a consequence, the 2nd Tenant claims that the products in her shop went bad since they were deemed expired after 14 days upon supply by the manufacturer and ought to have been returned to the manufacturer.

14. The 1st Tenant, on the other hand, claims that the Landlord erected a barbed wire fence on the frontage of the 1st Tenant’s shops thus making it difficult for their clients to access the shops since they cannot load the goods they have purchased from the 1st Tenant’s shop.

D. Landlord’s Case 15. The Landlord avers that he let out to the 1st Tenant two (2) shops for business together with a tank area compound on the suit premises. He also contends that he let out one shop to the 2nd Tenant in which he would operate a Wines & spirits shop.

16. He claims that both Tenants are in rent arrears. He claims that the 1st Tenant only paid KShs. 48,500 on 15/08/2022 and has since accrued arrears amounting to KShs. 99,000 as of 23rd May 2023. Similarly, the 2nd Tenant only paid KShs. 45,500 at the start of the Tenancy and has since accrued arrears amounting to Kshs. 45,000 as of 23rd May 2023.

17. Additionally, the Landlord contends that the 1st Tenant had heavily consumed electricity through welding of different structures in the suit premises and would leave the bulbs open 24/7 which drove the electricity bill into arrears amounting to KShs. 86,776.

18. The Landlord avers that despite numerous reminders to the Tenants to settle the outstanding rent arrears and the escalating electricity bill, they declined and/or refused to comply.

E. Issues For Determination 19. I have carefully perused all the pleadings and evidence presented before this Honourable Tribunal by the parties. It is therefore my respectful finding that the following issues are ripe for determination;a.Whether the Tenants are in rent arrears?

F. Analysis And Findings a. Whether the Tenants are in rent arrears. 20. It is not in dispute that the 1st Tenant was to pay a monthly rent of KShs. 11,000 in respect of the two shops rented to her and the 2nd Tenant was to pay a monthly rent of KShs. 9,000.

21. While the Tenants claim to have faithfully paid the rents due, they have not provided any receipts evidencing payment of the rents due to the Landlord. To this end, they claim that the Landlord demanded that they make the payment in cash but he refused to issue receipts.

22. The Landlord on the other hand claims that all rental payments done by the 1st and 2nd Tenants were done by vide Mpesa for accounting purposes. Further, the Landlord claims that both tenants are in rent arrears with the 1st Tenant being in rent arrears amounting to KShs. 99,000 and the 2nd Tenant being in rent arrears amounting to KShs. 45,000.

23. I note that the Landlord has not provided a statement of account indicating the rent payable, the rent paid and the arrears accrued by both parties. The Mpesa statement provided by the Landlord only indicates the amount paid by the Tenants but is not an indication of the accrued rent arrears.

24. Further, the Landlord contends that the 1st Tenant had heavily consumed electricity which drove the electricity bill into arrears amounting to KShs. 86,776. In support of this claim, the Landlord filed a copy of the billing statement showing the alleged electricity arrears.

25. I note that the said billing statement does not reflect the names of any of the parties in this matter. The name reflected on the Billing Statement is Joyce Wagio Ngumi who is neither the Tenants nor the Landlord. Secondly, as submitted by the 1st and 2nd Tenant is their submissions, the Billing Statement does not show how the 1st Tenant and 2nd Tenant accumulates arrears since it does not show what bill belongs to which premises.

26. Without sufficient evidence and documentation by either party to prove the whether the 1st and 2nd Tenants are in arrears or not, this Honourable Tribunal’s hands are tied and unable to make a pronouncement in this issue.

27. The Landlord and Tenant Shops Hotels and Catering Establishments Act Cap 301 Laws of Kenya (hereinafter the Act) establishes the jurisdiction of this Tribunal and prescribes the conduct of Landlords and Tenants in a controlled tenancy.

28. The preamble to the Act states that:“It is an Act of Parliament to make provisions with respect to certain premises for the protection of tenants of such premises form eviction or from exploitation and for matters connected therewith and incidental thereto.”

29. Section 4(2) of the Act obligates a landlord who wishes to terminate a controlled tenancy or alter to the detriment of the tenant any term or condition in or right or service enjoyed by the tenant, to issue a notice in that behalf in the prescribed form.“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 in the prescribed form”.

30. In the case of Manaver N. Alibhai T/A Diani Boutique vs. South Coast Fitness & Sports Centre Limited, Civil Appeal No. 203 of 1994 it was stated as follows;“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The notice must also specify the ground upon which termination is sought. The prescribed notice in Form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice.”

31. The Inspection Report submitted to the Tribunal revealed that the Landlord did not give the 1st Tenant the chance to finish putting up structures that she intended to use for purposes of running her business in the first shop, such as, installation of water pipes and tanks and construction of shelves.

32. The Inspector also witnesses the remains of barbed wire that the Landlord was purported to have erected on the 1st Tenant’s frontage, thus prohibiting the 1st Tenant and/or her clients from freely accessing the premises.

33. Further, the Court Inspector in his Report, stated that the Landlord had rented out the 1st Tenant’s second shop to another Tenant who was enjoying the developments done by the 1st Tenant. I note that this claim was not rebutted by the Landlord.

34. The Inspection Report also indicated that the 2nd Tenant’s shop had been locked by a foreign padlock and it seemed to have not been operational for some time evidenced by the dust and cobwebs on the shelves.

35. The Landlord has not provided any evidence of any notice served to the Tenants before interfering with the terms and conditions of the tenancy, including, the enjoyment of quiet possession of the property by the Tenant as required by the Act. This Tribunal therefore finds the Landlord in contravention of Section 4(2) of Cap 301 Laws of Kenya.

36. Before delving on the orders sought, I note none of the parties complied with orders given by this Tribunal on 22nd March 2023. The 1st Tenant was directed to prepare a list of damages and costs for assessment as shop has been given to a 3rd party and the 2nd Tenant was directed to take back his items on the shop and vacate by 15th April 2023 and file assessment of costs and damages. I note that neither the 1st Tenant nor the 2nd Tenant has filed a list of costs and damages for assessment.

37. The Landlord on the other hand was directed to provide the 1st Tenant with a statement of account of amount owing, if any, and or reason for locking/interfering with the Tenant. The Landlord has not filed any statement of account of amount owing.

38. Having made the above findings, noting the lack of sufficient evidence by each party and the non-compliance with the orders given, I now turn to the prayers made by each party in these proceedings and make the following orders in the upshot.

G. Orders 39. The upshot is that the Tenant’s Application and Reference dated 8th February 2023 are hereby dismissed in the following terms:a.The Landlord to take vacant possession and lease the same out to other tenants.b.Each party shall bear their own costs.

HON A. MUMAAG. CHAIR/MEMBERHON. JACKSON ROPMEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JANUARY 2024 IN THE ABSENCE OF THE PARTIES.HON. A MUMAAG. CHAIR/MEMBERHON. JACKSON ROPMEMBERBUSINESS PREMISES RENT TRIBUNAL