William Njoroge Kubai v Hamilton Ayiera Nyaga [2022] KEBPRT 19 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 587 OF 2019 (NAIROBI)

WILLIAM NJOROGE KUBAI................................................LANDLORD/APPLICANT

VERSUS

HAMILTON AYIERA NYAGA.................................................TENANT/RESPONDENT

RULING

1.   This matter came up for hearing on 13th January 2022.  The Landlord and his advocate were present, the Tenant who had been served with a hearing notice for the day did not attend court and therefore this matter proceeded in his absence.

2.   The Landlord’s case:

The Landlord sought to and was allowed to rely on his statement filed in court and dated 4th January 2022.  I summarize the same as follows;

a.   That he is the registered owner of plot No. 101 Korogocho which is the subject matter of this suit.

b.   That he has put up houses and kiosks on the said plot and has rented them out to Tenants.

c.   That the kiosks are built on the Landlord’s land contrary to the report by one Mr Karanja, the Ward Administrator.

d.   That the Respondent has been the Applicant’s Tenant since 2004 when he first rented three rooms in the main building but which rooms he has since vacated.

e.   That in the year 2004, the Tenant rented the Landlord’s kiosks at an agreed rent of Kshs 400/- (four hundred only).

f.    That the Tenant is in rent arrears of the kiosks since the year 2013.

g.   That the total rent arrears is Kshs 163,400/- and the Landlord has an order from the Tribunal allowing him to levy distress.

3.   The Landlord’s complaint to the Tribunal is the one dated 19th June 2019, it states;

“Termination of the tenancy pursuant to final orders of the Tribunal having been issued against Hamilton Ayera Nyaga, in that he has refused and/or ignored to vacate dispite a notice to terminate tenancy effective 1st June 2019 being duly served.”

4.   The Landlord’s notice to terminate tenancy is the one dated 10th March 2019.  The ground for termination of the tenancy against the Tenant is stated as failure to pay rent for “the last 77 months amounting to Kshs 142,000/-.

The notice to terminate tenancy was served upon the Tenant and an affidavit of service filed by one Edward Mwendwa Kathunzu.  The Tenant has not filed any reference against the said notice.

5.   The Tenant having not filed any reference to the Tribunal in opposition to the notice to terminate his tenancy, the notice took effect from the effective date indicated thereon, that is 1st June 2019, and therefore the Landlord is entitled to the orders of eviction against the Tenant.

6.   I have gone through the statement of the Landlord and I am unable to find the basis for the claim of rent arrears of Kshs 163,400/-.

7.   It is not clear from the evidence of the Landlord how many kiosks the Tenant had rented.  It is also not clear whether the Landlord is claiming any rent from the Tenant on account of the three rooms the Tenant has already vacated.  It is doubtful whether the Tribunal has jurisdiction to make any orders as regards these rooms as the Tenant is no longer a Tenant in the said rooms.

8.   The Landlord has stated that the Tenant has not paid rent for the kiosks since 2013.  The disclosed rent per month is Kshs 400/-.  Since it is not disclosed how many kiosks the Tenant occupy, I will base the calculations of rent payable on one kiosk.  This would work out as follows;

Rate Kshs 400 per month.

Duration 2013 to 2021 (8 years).

400 x 12 x 8

38,400/-.

9.   I therefore do find that the rent outstanding is Kshs 38,400/- as at December 2021 and Kshs 400/- for the month of January 2022, total Kshs 38,800/- which I order the Tenant to pay to the Landlord.  in view of the fact that the Landlord’s notice to terminate tenancy took effect from 1st June 2019, I do order that the Tenant be evicted from plot No. 101 Korogocho.

10. The Landlord will have the costs of this reference.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari (Chairman) this8thday of March, 2022in the presence of Mr King’oriholding brief for Mr Kimanifor theLandlord/Applicantand in the absence of the Respondent.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL