Yes Boss Sacco v AFC/ADC Development House [2021] KEBPRT 378 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 318 OF 2021 (NAIROBI)

YES BOSS SACCO..................................................................TENANT/APPLICANT

VERSUS

AFC/ADC DEVELOPMENT HOUSE........................LANDLORD/RESPONDENT

RULING

The applicant’s amended notice of motion dated 26th April 2021 seeks the following prayers;

1. Spent

2. That the Tribunal be pleased to issue an order compelling the Respondent to open the shop/office No. 2 13th Floor, Development House, Nairobi so that the Applicant can access its bank documents and pay the alleged rent arrears.

3. That the Respondent be prohibited from evicting or in any other way interfering with the business of the Tenant/Applicant herein whatsoever.

4. That the Respondent to meet the loss incurred by the Applicant since 19th March 2021 when the Respondent closed the shop without notice to the Tenant.

5. The OCS Kamukunji Police Station to ensure compliance.

6. Costs.

The grounds upon which the application is brought and the contents of the affidavit in support thereof may be summarized as follows;

1. The Applicant, Tenant of the Respondent since 2011 have met all their allegations to the Respondent/Landlord.

2. The monthly rent is Kshs 10,500/-.

3. On 19th March 2021, the Respondent closed the Applicant’s shop without notice to the Applicant who can no longer access the business.

4. The Applicant is a protected Tenant.

5. That the Applicant’s bank documents and cash have been locked in the premises.

The application is opposed. The Respondent has sworn an affidavit in reply and whose contents I summarize as follows;

1. That the Applicant, Yes Boss Sacco is a stranger to the Respondent since there is no former or existing tenancy agreement between the Applicant and the Respondent.

2. That the records held by the Respondent do not show the Applicant to have been a past or present Tenant of the Respondent.

3. That John Guy Nkuruziza, the Applicant’s representative has a case with the Landlord being BPRT case No 576 of 2020.

4. That in the said case, John Guy Nkuruziza was ordered to pay the Respondent Kshs 264,000/- failing which the Respondents would commence distress and eviction proceedings.

5. That the sum ordered paid in BPRT No. 576/2020 remains unpaid.

6. That John Guy Nkuruziza is misleading the Tribunal in filing the present suit while the dispute between him and the Respondent has been determined.

7. That the orders of 15th April 2021 cannot be executed for lack of a contractual relationship between the parties.

The main contention in this dispute is whether or not the Applicant is a Tenant of the Respondent, and further whether the Applicant/Tenant is entitled to the prayers sought in its application.

The Applicant alleges that it has been the Tenant of the Respondent since 2018and has fully met all its allegations as the Tenant of the Respondent. On the other hand, the Respondent has denied that the Applicant has ever been its Tenant. The Respondent has stated that the Applicant is a stranger.

The Respondent has gone further to state that John Guy Nkurunziza who has sworn an affidavit on behalf of the Applicant has a previous dispute between himself and the Respondent, BPRT Case No 576 of 2020. In the said suit the said John Guy N was ordered to pay to the Respondent the sum of Kshs 264,000/- failing which the Respondent herein would levy distress and commence eviction proceedings. The Respondent has not established the nexus between this caseNo. 576 of 2020and the present case. There is no material placed before me for example to establish that the premises the subject of both cases is the same and or that the parties are the same.

The Landlord has denied that the Applicant is its Tenant. The Applicant states that it has been a Tenant on the demised premises since 2018. The Respondent has not denied that the Applicant is in occupation. As things stand it is the word of one party against the word of the other party. None of the parties have given the Tribunal any material in support of their cases.

Though the Applicant prays that an order be issued for the reopening of the premises to enable it access the bank documents and pay the rent arrears, the Applicant’s affidavit does not state the amount of the alleged rent arrears.

The Respondent on its part does not seem to demand any rent arrears from the Applicant. The Applicant has the duty and burden to prove its allegations. I find that in light of the contents of the Respondent’s affidavit, the Applicant has not proved that there exists any tenancy between it and the Respondent at this interlocutory stage. The application dated 26th April 2021 lacks merit and the same is dismissed with costs to the Respondent.3

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling read and delivered virtually by Hon Cyprian Mugambi Nguthari this 19thday ofJuly 2021in the absence of parties.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL