[2021] KEBPRT 48 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 72 OF 2020 (MOMBASA)

CONSOLIDATED WITH NO. E057 OF 2021

BRENDA MAKENA KINYAMWO.................APPLICANT/TENANT

VERSUS

GORDON MWATATA MWARINGA... RESPONDENT/LANDLORD

JUDGMENT

1. The Landlord herein served a tenancy notice dated 17th February 2020 seeking to terminate tenancy of the tenant herein in respect of a pub situate at Mtopanga in Mombasa County with effect from 1st May 2020.

2. The ground upon which the termination is sought is that the landlord intends to carry out renovations and he could not be able to do so without obtaining vacant possession.

3. In opposing the notice, the tenant filed a reference dated 28th February 2020. She also filed a statement/supporting affidavit sworn on 15th October 2021 in support of the reference.

4. The landlord did not file any affidavits or statements but made oral presentations on 15th December 2021 in opposition to the reference.

5. The tenant runs a pub at the landlord’s premises located at Kadzandani in Mombasa County plot No. 218/MN as per the single business permit marked BK-1 attached to her aforesaid affidavit.

6. According to the tenant, there was no toilet in the business premises and she asked the landlord who said he had no money to construct the same. She was shown by the landlord where to construct the toilet. He also supervised the construction according to the tenant. The tenant spent Kshs.92,060/- to complete the construction as per annextures ‘BK-3’.

7. The tenant deposes that the landlord has been harassing her and her customers and employees with an intention of forcing her to vacate the suit premises with a case in point being an incident reported at Kadzandani Mwataba Police Station vide OB No. 14/15/02/2020 pursuant to which the landlord was allegedly charged with creating a disturbance.

8. According to the tenant, she was never served with a legal notice to vacate the suit premises until 27th February 2020 which was the same day she complained to the police against the landlord.

9. According to the tenant, she closed down her business for 4 months and fell into rent arrears from May to August 2021 in the sum of Kshs.23,000/-. She admits owing electricity bills for the same period.

10. She wishes that the amount in arrears as well as the electricity bills be deducted from the sum of Kshs.92,060/- incurred in the construction of the toilet and the balance of Kshs.69,060/- be refunded to her.

11. When the tenant went to remove her items from the demised premises, she found the premises closed by the landlord. A demand letter marked ‘BK-8’ was written to the landlord on 28th August 2021. The letter demanded for Kshs.69,060/- and termination of the tenancy unconditionally.

12. The tenant’s chief complaint is that she should not be evicted without compensation. The receipts attached to prove the amount claimed by the tenant includes a sum of Kshs.6500/- as costs for ‘small counter sand Kshs.3500/-‘’ and “small counter concrete Kshs.3000/- and not the pit latrine.

13. Secondly, the amount of labour charges of Kshs.30,200/- is not broken down to enable the Tribunal appreciate how it is made up.

14. According to the landlord, the tenant refused to pay rent and only went back in September 2021 requesting to pay half rent. He denied allowing the tenant to construct the toilet blaming her for being arrogant.

15. The landlord submitted that his plot had 2 toilets and 3 bathrooms built by him. He admitted that the tenant did a urinal for her patrons without his permission. He stated that he wanted the case to be decided on the evidence on record.

16. In Mombasa BPRT No. E059 of 2021, the landlord is the Applicant wherein he seeks to recover accumulated rent arrears of Kshs.27000/- as at 13th September 2021 and thereafter vacate from the suit premises as per the tenancy notice dated 17th February 2020.

17. The monthly rent payable for the demised premises is Kshs.4500/- which had accumulated to Kshs.27000/- as at April 2021.

18. The landlord states that he intends to do renovation of the suit premises and thereafter set a family business thereon. As such, he prays that the tenant vacates the premises in terms of the tenancy notice.

19. I am now called upon to determine the following issues:-

a. Whether the tenancy notice by the landlord should be upheld or dismissed.

b. Whether the tenant is entitled to compensation for the improvements effected on the demised premises.

c. Whether the landlord is entitled to recover rent arrears claimed.

d. Who is liable to pay costs?

20. The two matters were ordered to be disposed of together. I note that the landlord did not respond to the first case by way of filing affidavit or statement. Similarly, the tenant did not respond to the second case by the landlord. I shall therefore take the depositions made by the two parties to be their respective answers to the diametrical positions herein.

21. There is no dispute that the tenant was served with the tenancy notice dated 17th February 2020. She does not dispute the ground of termination set out therein by the landlord. The only condition she wants the Tribunal to consider is that before she vacates therefrom, she ought to be compensated for the improvements effected thereon in the sum of Kshs.92,060/- and the rent due of Kshs.23,000/- be deducted therefrom.

22. On the other hand, the landlord is claiming rent arrears of Kshs.27,000/- as at 13th September 2021. I presume that the variance in figures is occasioned by the fact that rent continues to accrue on monthly basis and the additional sum of Kshs.4000/- is occasioned by application of rent for September 2021.

23. I further note that from the month of October to January this year, a further sum of Kshs.18000/- has accrued to bring the total rent arrears at Kshs.45,000/-.

24. In regard to the tenant’s claim for compensation, the landlord maintained that he never consented to construction of the toilet on the suit premises as his premises has 2 toilets and 3 bathrooms built by him.

25. According to the landlord, the tenant built a urinal for her patrons without his permission. On the other hand, the tenant stated that the same was done with the landlord’s permission and that he is the one who identified the site and even supervised its construction.

26. The landlord has not disputed the figures quoted by the tenant in respect of the cost for the said construction. As noted above however, the receipt for Kshs.50,050/- includes the cost of construction of the counter and does not relate to the toilet. I shall therefore deduct the sum of Kshs.6,500/- from that receipt. This leaves the total amount for construction of the toilet at Kshs.85,560/-.

27. Although the landlord disputes having given consent to the construction of toilet by the tenant on his plot, he did not complain anywhere about it and indeed confirms the same to have taken place. He is therefore estopped from denying consent.

28. The tenant stated that the landlord only issued the termination notice after he was accused of creating disturbance and I tend to believe that the only reason why he denies having consented to construction of the said toilet is because of the sour relationship arising from the said police report. I therefore believe the tenant that the said construction was done with the landlord’s consent. She is thus entitled to compensation for costs incurred in so doing.

29. In the premises, the final orders that commend to me are:-

a. The landlord’s notice to terminate tenancy is hereby upheld.

b. The tenant shall vacate from the suit premises being plot no. 218/MN, Kadzandani, Mombasa County on or before 31st January 2022 and in default shall be evicted therefrom by a licensed Auctioneer who shall be provided with security by the OCS Mwatamba Police Station.

c. The tenant is entitled to Kshs.85,560/- being compensation for construction of the toilet on the suit premises from which a sum of Kshs.45,000/- shall be deducted as rent owing to the landlord upto 31st January 2022.

d. The balance of Kshs.40,560/- shall be paid to the tenant by the landlord failing which the same shall be recovered by way of execution under section 14 of Cap. 301, Laws of Kenya.

e. Each party shall meet own costs of the consolidated cases.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 7TH DAY OF DECEMBER, 2021

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Tenant present in person

No appearance for the landlord