[2021] KEBPRT 56 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 372 OF 2020 (NAIROBI)

BENEDICT NGAA MALII........................TENANT/APPLICANT

VERSUS

CHARLES MBUVI N. MUEMA.....LANDLORD/RESPONDENT

JUDGEMENT

1. The Tenant’s reference to the Tribunal dated 9th April 2020 and brought under section 12(4) of Cap 301 of the Laws of Kenya is in the following terms;

“The Respondent/Landlord has unlawfully refused to accept rent for March 2020, closed and denied me access to my business premises with all my goods of trade inside and issued verbal notice to evict me from business premises contrary to provisions of Cap 301 of the Laws of Kenya. I pray this court to intervene and I be given the necessary orders.”

2. The reference came up for hearing on 26th July 2021 when the parties gave oral testimony and I summarize their evidence as follows.

3. The Tenant’s evidence was to the effect;

a. That the Tenant adopts as his evidence, the affidavits sworn by himself on 9th April 2020, 6th July 2021 and the witness statement filed by himself.

b. That he filed this complaint because the Landlord closed his business premises.

c. That Kenya National Highways Authority was constructing a road next to the premises and had issued a notice for reconstruction of the premises, this affected the Tenant’s shop and it was agreed that he would take an alternative shop, not the one at the rear.

d. That failing to get an adjacent room, the Tenant moved his wares to a rear room. Later the Landlord called the Tenant requesting him to remove his goods to prevent them from being destroyed by the artisans.

e. That the Tenant paid rent for March 2020 which the Landlord returned and when the Tenant asked for a refund of his deposit he was told to wait.

f. That in April 2020, the Landlord informed the Tenant that his deposit had expired and he ought to move out of the premises. That is when the Tenant moved to Court/Tribunal.

g. That the building is now ready for use, the front room and the rear room are connected and they have been rented out to the Tenant as one unit.

h. That the Tenant is desirous of continuing doing his business in the premises but if the Landlord is desirous of terminating the tenancy, then he ought to follow the laid down procedures.

4. Upon cross-examination, the Tenant stated;

a. That it is true that the walls of the premises were demolished by the Landlord on the orders from KENHA.

b. That he was present when the premises was inspected.

c. That by 9th April 2021, the Landlord had completed construction of the premises and it is only building materials which remained on the premises.

d. That the Tenant only moved out to allow the Landlord to complete the construction although he is currently not in the premises.

e. That the Tenant is still in occupation of the backroom although he is not paying rent for the same.

5. The Landlord’s evidence was to the effect;

a. That he seeks to adopt as his evidence, the affidavit sworn by himself on 4th December 2020.

b. That on 31st January 2020, the Kenya National Highways Authority (hereinafter referred to as KENHA) issued a notice to landowners, whose premises were encroaching on the Highway to remove the same. The Landlord complied with the order.

c. That the Tenant was informed of the order/notice by KENHA but he came to court and construction has therefore not been completed due to the existing court orders.

d. That the front room of the Tenant’s premises and the rear rooms have building materials.

e. That the Tenant should not have come to court before the construction of the premises was completed.

f. That it is the Tenant who blocked the door connecting the front room and the rear rooms.

6. On cross-examination the Landlord stated;

a. That an out of court settlement was attempted but the Landlord informed the mediation team that the building was not complete.

b. That the Landlord did not comply with the court orders because he was still constructing the shops and he challenged the orders in court.

c. That he had plastered the walls by the time he received the court orders.

d. That the shelves that remained in the premises belong to the Landlord, the Tenant found them there.

e. That the Landlord has not reopened the premises and he does not know when he will finish the construction.

f. That the Landlord is not willing to give back the premises to the Tenant whom he now regards as an enemy of his family.

7. The following facts are not contested in this matter;

a. That KENHA issued a notice to the Landlord to demolish part of his premises that had encroached on the highway.

b. That the Landlord complied with the notice by KENHA by demolishing the front part of the building.

c. That the Tenant indeed moved out of the premises and stored his merchandise in a back room.

d. That the construction of the business premises is not completed yet.

e. That the Tenant is not paying rent for the premises currently.

f. That the tenancy between the parties is a controlled tenancy.

8. The issue that arises for determination in this matter is;

“What is the effect of the notice of intended removal of encroachment on classified road reserve for Kibwezi-Mutomo-Kitui-Kabati-Migwani Road issued to the Landlord by KENHA on the tenancy between the parties?

9. The notice states at paragraph 1;

“The Kenya National Highways Authority has noted that you have encroached on the road reserve for Kibwezi-Mutomo-Kitui-Kabati-Migwani (A9/B64) Road by 0. 6 meters without the written permissions of the Director General KENHA”.

10. Paragraph 4 and 5 of the notice states;

“Take notice that you are required to remove and make good the encroachment within thirty (30) days from the date hereof.

Take further notice that failure to comply with this notice shall result in the KENHA removing the encroachment pursuant to section 49(5) of the Kenya Roads Act 2007 and section 91(2) of the Traffic Act Cap 403 with your risk as to costs attendant thereto.

11. Section 49 (1)(a) of the Kenya Roads Act 2007 is in the following terms.

49 (1) “Except as provided in sub-section (2) no person or body may do any of the following thing without the responsible authority’s written permission or contrary to such permission or contrary to such permission.

a. Erect, construct or lay or establish any structure or other thing on or over or below the surface of a road reserve or land in a building restricted area.”

12. Under section 91 (2) of the Traffic Act Cap 403,

“It shall be lawful for the Highway Authority to remove anything whatsoever which has been placed or erected on a road or land reserve therefore in contravention of this section.”

13. It is common ground that the demised premises were on/or encroached upon land reserved for a road. Both parties agree to this. It is also clear that there are sanctions for encroachment upon road reserves or land reserved for road reserve. Failure by the Landlord to remove the encroachment would lead to the KENHA removing the same with attendant costs being loaded upon the Landlord. Section 91(1) of the Traffic Act Cap 403also declares it an offence to encroach on road reserves.

14. The Tenant was aware of the notice by KENHA. Indeed, he states that he is the one who took the notice to the Landlord. I do not think the Landlord had any choice in this matter, he had either to demolish the premises within thirty days or the same would have been demolished by KENHA, he chose to do it himself and later reconstruct. I do not think in the circumstances of this case a notice to the Tenant would suffice or even be reasonably expected. Both parties know what faced them and the fact of the illegal encroachment on the road reserve makes it doubtful whether a notice to vacate premises illegally constructed on a road reserve would have been valid.

15. The Tenant in recognition of the hard place that both parties found themselves in vacated the suit premises to enable the Landlord comply with the orders of KENHA. The Landlord provided storage space for the Tenant’s merchandise and did not demand any further rent from the Tenant. The construction or rather reconstruction of the premises is ongoing. I appreciate that the nature of the reconstruction of the premises would necessarily require that any parties’ resident therein do vacate to enable the Landlord to carry on with the exercise. It is therefore clear that the tenancy agreement between the parties herein was frustrated by acts/events beyond the control of the Landlord.

16. In the case of case of Rosemary Kinanu Gituma & Another Vs Kenya Commercial Bank Ltd [2013] eKLR, the court while citing the case of National Carries Ltd [1981] AC 67 stated;

“…Frustration of a contract takes place when there supervenes an event (without default of either party and for which the contract makes no sufficient provision) which so significantly changes the nature (not merely the expense or onerousness) of the outstanding contractual rights and/or obligations from what the parties could reasonably have contemplated at the time of its execution that it would be unjust to hold them to the literal sense of its stipulations in the circumstances; in such case the law declares both parties to be discharged from further performance.”

17. I am in agreement with the above reasoning and do find that the agreement between the parties herein was frustrated by the notice from KENHA and the parties thereby discharged from further performance of the same.

18. I also find that the Landlord’s refusal to accept rent from the Tenant after the construction of the premises had started to be proper and an honest endeavor on the part of the Landlord.

19. In the circumstances of this case, there is nothing illegal about the said refusal. There is also no evidence that the Tenant has been illegally denied access to the business premises which he vacated voluntarily and which is under construction.

20. In the final analysis, I therefore do find that the Tenant’s reference to the Tribunal dated 9th April 2020 has no merits and the same is dismissed with costs to the Landlord.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Judgementdated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this 17th day of December, 2021 in the presence of Mr Kamaufor the TenantandMr Muasyaholding brief forMr Musyokifor theLandlord.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL