Vic Outlet v Selim; Didu Investment Limited (Interested Party) (Tribunal Case E984 of 2024) [2024] KEBPRT 1749 (KLR) (13 December 2024) (Judgment)
Neutral citation:
[2024] KEBPRT 1749 (KLR)
Republic of Kenya
Tribunal Case E984 of 2024
P May, Member
December 13, 2024
Between
Vic Outlet
Tenant
and
Elsayed Barakat Selim
Landlord
and
Didu Investment Limited
Interested Party
Judgment
1.The tenant approached the Tribunal by filing the reference dated 30th August, 2024. The filing of the reference was precipitated by the landlord’s actions of commencing the process of levying distress for the rent arrears due. The tenant was aggrieved by the said actions stating that the landlord herein was not the proprietor of the demised premises and had been collecting rent illegally. According to the tenant, the actual owner of the demised premises was the interested party.
2.In order to protect themselves and preserve the subject matter in the dispute, the tenant had filed an application on an even date seeking a plethora of orders including orders of temporary injunction against the landlord and Mbusera auctioneers. The landlord and the interested party did not enter appearance in the present proceedings. The tribunal upon being satisfied that service had been effected allowed the interlocutory application on 15th October, 2024. The tenant then urged the Tribunal to proceed to make a determination in the dispute based on the evidence on record.
3.As stated above, the parties to the present suit did not enter appearance despite being served with the pleadings. It is a firmly settled procedure that even where a respondent has not denied the claim by filing of a response or an affidavit or even where the respondent did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial Tribunal has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side. see Mumbi M'Nabea v. David Wachira Civil Appeal No. 299 of 2012.
4.Whether or not the respondent has denied the facts by any response, when the tenant came to Tribunal, they are bound by law and practice to lay the evidence to support existence of the facts they pleaded. That is what Section 108 of the Evidence Act demands of a party like the tenant that:
5.Guided by the above provisions of the law and decisions from the superior courts, I will proceed to analyze the merits of the reference. It was the tenant’s testimony that they entered into tenancy with the landlord herein. They have annexed an executed lease and proof of payment in support of this position. The tenant stated that they later realized that the landlord had misled them into believing that he was the owner of the demised premises while the actual owner was the tenant.
6.The tenant therefore sought for the protection from the Tribunal against the impending distress for rent which the landlord had commenced. It is imperative to dissect the relationship between the parties herein.
7.Under Section 2 of the said Act, a Landlord has been defined as
8.The Act further and under the same Section 2 defines a Tenant as:-
9.The facts in the present dispute point to the tenant being in occupation of the demised premises having gained access to the same through the lease entered with the landlord. Upon discovering that the landlord was not the real owner of the premises, they reached out to the interested party with a view of entering into a new lease to enable them remain on the premises. Based on the definition given above, the tenant herein fits the definition of a tenant as provided under CAP 301.
10.It is the tenant’s testimony that the landlord herein was an impostor. This position was not controverted as the alleged landlord elected not to participate in the proceedings. The tenant has proven on a balance of probability that the landlord is not entitled to the rent; he therefore does not qualify to be a landlord as envisioned under CAP 301. The tenant has urged the Tribunal to compel the landlord to refund the rent received. The Tribunal is empowered to make orders for compensation under Section 12 of CAP 301.
11.Having made the above finding it is clear that the reference is merited. The same is allowed in terms of c, d and e of the reference. The tenant is awarded costs assessed at Kshs.100,000.
HON. P. MAYMEMBERBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually this 13th day of December 2024 in the presence of Okemwa holding brief for Ayaka for the Tenant and No Appearance for the Respondent and Interested partyHON. P. MAYMEMBERBUSINESS PREMISES RENT TRIBUNAL