Case ID:180426

Sarah Mugo t/a Shiloh Loaf v Charity Kabari Gacheni [2021] eKLR

Case Metadata

Case Number:

Tribunal Case 572 of 2020 (Nairobi)

Parties:

Sarah Mugo t/a Shiloh Loaf v Charity Kabari Gacheni

Date Delivered:

04 Aug 2021

Case Class:

Civil

Court:

Business Premises Rent Tribunal

Case Action:

Ruling

Judge(s):

Hon. Cyprian Mugambi Nguthari - Chairman Business Premises Rent Tribunal

Citation:

Sarah Mugo t/a Shiloh Loaf v Charity Kabari Gacheni [2021] eKLR

Advocates:

Miss Munyangi for the Landlord

Court Division:

Tribunal

County:

Nairobi

Advocates:

Miss Munyangi for the Landlord

History Advocates:

One party or some parties represented

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 572 OF 2020 (NAIROBI)

SARAH MUGO T/A

SHILOH LOAF......................................................TENANT

VERSUS

CHARITY KABARI GACHENI........................................................LANDLORD

RULING

The Landlord’s application dated

29

th

April 2021

seeks the following prayers;

1. Spent.

2. That this Honourable Tribunal be pleased to allow the Landlord/Applicant herein to distress for accruing rent arrears of

Kshs 1,120,000/-.

3. That this honourable Tribunal be pleased to waive further court fees on distress for rent.

4. That the Tenant renders vacant possession of the suit premises

L.R. No 6845/123

failing which eviction does issue against the Tenant with the assistance of the OCS Ruai Police Station.

5. Costs.

The grounds upon which the application is brought may be summarized follows;

1. That the Tenant has accrued rent arrears to the time of

Kshs 1,120,000/-.

2. That the Tenant has closed the suit premises through her tools of trade are inside the suit premises.

3. That the Landlord is entitled to access the suit premises and from therein earn a profit and benefit.

4. That the court fees be waived as the Landlord is not earning anything from the suit premises.

5. That failure by the Tenant to prosecute her application is a clear indication that she has lost interest in her claim.

The affidavit in support of the application restates the grounds upon which the application is brought. I have read and considered the same.

The application is not opposed. Be that as it may, I am enjoined to consider the said application alongside the pleadings in the file in order to determine whether the orders sought by the Landlord/applicant may be granted.

I do note from the record that the Tenant’s application dated

8

th

June 2020

has not been determined. The Landlady/Applicant herein had responded to the Tenant’s said application vide her affidavit sworn on

16

th

June 2020

. On

11

th

June 2020

the Tribunal issued the following orders amongst other orders;

“(c) An order is hereby granted restraining the Defendant/Respondent by either herself, her servants, employees and/or agents from breaking into the suit premises, trespassing, evicting, harassing the Tenant and/or in any other manner interfering with her tenancy pending the hearing of the application inter partes.”

Like I have stated above, the Tenant’s application has not been heard

inter partes.

The above order was issued by the Tribunal pending the

inter partes

hearing of the Tenant’s application. The said order has not been varied and/or set aside. The pendency of the said order makes it difficult to issue any adverse orders against the Tenant.

The proper action to take in the circumstances would be to fix the application for hearing or to apply to have the orders varied and/or set aside.

The Applicant/Landlord seeks to be allowed to levy distress against the Tenant for rent arrears amounting to

Kshs 1,120,000/-.

There does not seem to be a consensus on the amount of rent owing. I note that the Tenant had requested to be allowed to pay rent arrears amounting to

Kshs 258,000/-

in the instalments. On

14

th

July 2020

when the matter came up for hearing, the Tenant declined to record a consent on the alleged outstanding rent of

Kshs 426,000/-.

She disputed the rent outstanding.

The Landlady in her replying affidavit sworn on

16

th

June 2020

states at paragraph.

“That it is true the Plaintiff/Applicant is in arrears of

Kshs 426,000/-

but not

Kshs 258,000/-

as she purports”.

I am therefore not able to say or find with certainty that the rent sought to be recovered is without disputation. The Applicant/Landlord has made an averment in her affidavit which is not supported by a statement of accounts. In this regard, the case of the Landlord would have been easier had the Landlord complied with the provisions of

section 3(3) of Cap 301

which is in the following terms;

“The Landlord of a controlled tenancy shall keep a rent book in the prescribed form of which he shall provide a copy for the Tenant and in which shall be maintained a record, authenticated in the prescribed manner of the of the particulars of the parties to the tenancy and the premises comprised therein and the details of all payments of rent and of all repairs carried out to the premises”.

The requirement to keep a rent book is couched in a mandatory manner.

The Landlord in the instant case has not shown that he kept may such record, making it very difficult to make a finding on the rent owing considering the Tenant does not agree with the Landlord’s computation of rent owed.

In the circumstances, I am not satisfied that the Landlord’s application dated

29

th

April 2021

has merit, I do hereby dismiss the same with no order as to costs.

T

he application dated 8th june 2020 to be heard on 23rd august 2021.

The Landlord to serve.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling read and delivered virtually by

Hon Cyprian Mugambi Nguthari

this

4

th

day of

August, 2021

in the presence of

Miss Munyangi

for the

Landlord

and in the absence of the

Tenant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL