[2022] KEBPRT 769 (KLR)

Ali Mansur Ali t/a Timberland v Zubedi (Tribunal Case 197 of 2020) [2022] KEBPRT 769 (KLR) (23 September 2022) (Judgment)

Neutral citation: [2022] KEBPRT 769 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 197 of 2020

Gakuhi Chege, Vice Chair

September 23, 2022

Between

Ali Mansur Ali t/a Timberland

Applicant

and

Sheikha Abed Awadh Zubedi

Respondent

Judgment

1. On 28th July 2020, the landlord herein issued a notice of termination of tenancy upon the tenant in respect of his tenancy over plot no. Mombasa/Block XV11/219 with effect from 1st October 2020 on the grounds that the tenant was highly and persistently irregular in rent payment whenever it became due and payable and was by then in rent arrears of Kshs.203,940/- being rent for the months of February 2020 and March 2020 at Kshs.18,000/- and rent for April May, June and July at Kshs.41,985/- per month.

2. The second ground is that the tenant defaulted in paying rent for a period of more than two (2) months after such rent had become due and payable.

3. The said notice was served on the tenant on 30th July 2020 whereupon he filed the instant reference on 3rd August 2020 and the reference was received by the landlord’s advocates under protest on 21st August 2020.

4. The matter came up for mention on 20th September 2021 for purposes of fixing a hearing date and the same was fixed for 22nd October 2021. On the hearing date, the parties had not complied with orders of 20th September 2021 which required them to file and exchange witnesses statements. As a result, the case was fixed for mention on 4th November 2021 for directions and fixing a new hearing date.

5. On 17th December 2021, the Tribunal directed that the matter be fixed for hearing during its sittings in Mombasa and in the meantime parties were required to comply with directions of 20th September 2021.

6. In preparation for the hearing, the landlord filed the following documents:-i.Witness statement dated 13th May 2021 attaching 4 rent payment receipts.ii.List of documents dated 29th September 2021 and copies of documents.iii.Further list of documents dated 13th May 2022. iv.Submissions dated 21st June 2022.

7. On the other hand, the tenant filed the following documents:-a.Witness statement dated 1st November 2021. b.List of documents dated 1st October 2021 and copies of documents.c.Further list of documents dated 13th May 2022. d.Written submissions dated 28th June 2022.

8. The matter proceeded by way of viva voce evidence on 17th May 2022 when both the landlord and tenant testified without calling other witnesses. They both adopted their written statements and produced documents already filed in court.

9. From both the pleadings, evidence and submissions, the following issues arise for determination:-a.Whether the landlord’s notice to terminate tenancy dated 28th July 2020 ought to be upheld or dismissed.b.Who is liable to pay costs of the Reference?

10. The landlord testified in support of the termination notice to the effect that the tenant used to pay Kshs.18,000/- as monthly rent which was increased to Kshs.41,985/- with effect from 1st April 2020 via a notice dated 31st January 2020 against which he failed to file a reference. The said notice is currently the subject matter of BPRT case no. 195 of 2020 (Mombasa) pursuant to leave granted by Hon. P. May, Vice Chair to institute a reference vide a ruling delivered on 6th October 2022. I shall not discuss the merits or demerits of the said case to avoid embarrassing a fair trial. It is however my view that any decision thereon shall only determine the rent payable for the period after 1st April 2020 when the increment notice was meant to take effect and not the notice of termination of tenancy subject matter hereof.

11. According to the landlord, the tenant had been persistently irregular in payment of rent and was in rent arrears for the months of February to July 2020 and only paid the said arrears vide a cheque dated 20th August 2020. The tenant is accused of insisting to pay rent in arrears as opposed to in advance. As a result, the landlord served notice to terminate tenancy subject matter of the instant proceedings.

12. Among the documents produced by the landlord is a forwarding letter for a cheque dated 20th August 2020 for Kshs.108,000/- being rent for March to August 2020 at Kshs.18,000/- per month.

13. The landlord also produced a demand letter for rent payment dated 9th September 2020 failing which distress would ensue after 14th September 2020. By a letter dated 14th September 2020 which is listed as landlord’s document no. 8, the tenant insisted on paying rent at the end of each tenancy month as opposed to in advance with effect from the month of September 2020.

14. The following other letters are exhibited by the landlord:-i.Letter dated 5th January 2021 forwarding rent for the month of December 2020. ii.Letter dated February 2021 forwarding rent for the month of February 2021. iii.Letter dated 8th February 2021 forwarding rent for the month of January 2021. iv.Letter dated 13th April 2021 forwarding rent for the month of March 2021. v.Letter dated 18th May 2021 forwarding rent for the month of April 2021. vi.Letter dated 21st May 2021 by the landlord’s advocates demanding payment of Kshs.311,805/- being arrears occasioned by rent increment from 1st April 2020 at Kshs.18,000/- to Kshs.41,985/- subject matter of the pending case no. 195 of 2020 (Mombasa).vii.Similar letters forwarding cheques annexed to the landlord’s further list of documents dated 11th May 2022.

15. On the other hand, the tenant contends that he has been in occupation of the suit premises for over Ten (10) years and that there was an oral agreement between him and the landlord that rent is payable at the end of each month. He denies being irregular in paying rent and that the same was evident in the rent receipts in his list of documents.

16. Among the documents annexed to the tenant’s list of documents dated 15th October 2021 are the following:-i.Receipt dated 6th February 2010 for the month of January 2010. ii.Receipt dated 7th October 2010 for the month of September 2010. iii.Receipt dated 6th September 2011 for the month of December 2010. iv.Receipt dated 5th December 2011 for the month of December 2011v.Receipt dated 5th January 2012 for the month of December 2012. vi.Receipt dated 5th March 2012 for the month of February 2012. vii.Receipt dated 6th August for the month of July 2013viii.Receipt dated 11th February 2014 for the month of January 2014. ix.Receipt dated 5th October 2015 for the month of September 2015. x.Receipt dated 5th March 2018 for unspecified month.xi.Receipt dated 5th February 2019 for the month of January 2019.

17. Having gone through the above receipts which are samples of the rent payment record of the tenant among many others not reproduced above, I agree with the tenant’s submission that rent had been agreed upon to be payable in arrears as opposed to in advance.

18. In the circumstances, I am not convinced that the tenant is highly and persistently irregular in rent payment whenever it becomes due and payable. In this regard, I am fortified by section 120 of the Evidence Act, Cap. 80, Laws of Kenya which provides as follows:-“When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true, and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative to deny the truth of that thing”.

19. In regard to the second ground of termination on account of default in payment of rent for more than two (2) months, the tenant submits that the landlord refused to accept rent from the month of April 2020 and that a party should not be allowed to benefit from its own wrong doing. He relies on the case of Mary Wanjiku & Challa holdings Ltd – vs- Kenya Commercial Bank Ltd (Mombasa HCCC No. 250 of 2000). The tenant attaches documents to the submissions (contrary to the rules of procedure) to act as evidence in support of his contention. The said documents are irregularly attached and are hereby expunged from record. Submissions cannot act as an affidavit through which documents can be produced. If the tenant desired to use the expunged documents as evidence, he should have sought at the appropriate time to file additional documents before the hearing.

20. The landlord on the other hand submits that rent for the months of February 2020 to July 2020 was unpaid and was only paid in August 2020. As a result, the landlord was forced to levy distress through a proclamation issued on 24th July 2020 and the tenant moved to the Chief Magistrate’s court to seek for injunction vide CMCC Misc. Application NO. 234 of 2020 and was issued with a conditional injunction subject to clearance of rent arrears.

21. As at August 2020, it is submitted that the tenant had rent arrears of 7 months be it Kshs.18,000/- or Kshs.41,985/-. The tenant is said not to have produced evidence of the landlord’s refusal to accept rent as alleged. He never demonstrated any attempt to use either Mpesa, cheque or deposit into the landlord’s account or through his advocate.

22. Section 7 (1) (b) of Cap. 301, Laws of Kenya provides one of the grounds for termination of tenancy to be:-“(b)That the tenant has defaulted in paying rent for a period of two months after such rent has become due or payable or has persistently delayed in paying rent which has become due and payable”.

23. I agree with the landlord’s submission that the tenant did not provide any sufficient explanation why he failed to pay rent from February to July 2020. His contention is that the landlord refused to receive rent in April 2020. However, there is no evidence that he paid rent for February and March 2020 before the alleged refusal which fits under section 7(1) (b) to terminate his tenancy. In the circumstances this ground of termination is proved.

24. I find the case of Yusuf Abdulswamad – vs- Haithar Haji Abdi (2021) eKLR cited by the landlord to be applicable to the circumstances of the instant case. I procced to uphold the notice of termination of tenancy on the said ground of non-payment of rent for a period exceeding two (2) months.

25. As regards costs, the same are in the Tribunal’s discretion by dint of section 12(1)(k) of Cap. 301, Laws of Kenya and I have no reasons to deny the landlord costs of this reference.

26. In conclusion therefore, the final orders that commend to me are:-a.The landlord’s notice to terminate the tenant’s tenancy dated 28th July 2020 is hereby upheld.b.The tenant shall vacate the suit premises being L.R No. Mombasa Block XVII/219 forthwith and in default shall be evicted therefrom by a licensed auctioneer with assistance of the OCS of the Police Station within whose jurisdiction the premises are situate at his own cost.c.The issue of rent arrears shall abide determination of Mombasa BPRT No. 195 of 2020. d.Costs of Kshs.50,000/- awarded to the landlord.It is so ordered.

RULING DATED, SIGNED & VIRTUALLY DELIVERED THIS 23RD DAY SEPTEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Hassan for the LandlordMiss Waithira for the Tenant