Case ID:165171

Victor Samson v Jacinta Wanjui Wangai [2019] eKLR

Case Metadata

Case Number:

Tribunal Case 79 of 2019 (Mombasa)

Parties:

Victor Samson v Jacinta Wanjui Wangai

Date Delivered:

05 Jul 2019

Case Class:

Civil

Court:

Business Premises Rent Tribunal

Case Action:

Judgment

Judge(s):

Mbichi Mboroki - Chairman

Citation:

Victor Samson v Jacinta Wanjui Wangai [2019] eKLR

Court Division:

Tribunal

County:

Mombasa

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

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

10

th

April 2019

filed a reference under

section 12 (4) of Cap 301

and 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

11

th

April 2019.

The Tenant is in occupation of the suit premises pursuant to the order of the Tribunal issued on

11

th

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

26

th

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

26

th

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

5

th

April 2019.

4. That on

7

th

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

10

th

April 2019

filed the reference before the Tribunal. The Tribunal issued orders on

11

th

April 2019

. The padlock which was in the suit premises was removed on

1

st

May 2019

in 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

1

st

May 2019

pursuant to the court order of the Tribunal issued on

11

th

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

26

th

March 2019.

3. The Landlord purported to unilaterally rescind the agreement entered on

26

th

March 2019

by refunding a sum of

shs 70,000

to the Tenant on

7

th

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

10

th

April 2019

and the complaint dated

10

th

April 2019

are allowed.

2.

Prayers 2 and 3 of the notice of motion dated

10

th

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

26

th

March 2019.

4. In the circumstances of this case, each party shall bear its own costs.

Judgement delivered this 5

th

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