[2021] KEBPRT 477 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 3 OF 2021 (MERU)

FRIDAH NAITO GITOBU T/A

DOUBLE GII SUPPLIES...............................................APPLICANT/TENANT

VERSUS

IBRAHIM Y. MUCHEKE....................................RESPONDENT/LANDLORD

RULING

The Tenant/Applicants application dated 8th May, 2021 seeks the following orders:

1. Spent

2. That pending the interpartes hearing and determination of this application the landlord be restrained from whatsoever interfering with the Applicant/Tenant’s peaceful occupation, possession and/or lawful operations of business situated on plot No. BII/144 MERU MUNICIPALITY (I have abridged this prayer).

3. That upon issuance of prayer 2 above, the O.C.S Meru Police Station be ordered to ensure compliance.

4. Costs of the Application.

The grounds upon which the Application is based may be summarized as follows:

1. That the Landlord is seeking to unlawfully evict the Tenant/applicant.

2. That the Landlord has not issued the Tenant/Applicant with a notice to vacate as required by section 4 (2) of Cap 301.

3. That the Landlord has threatened to demolish the roof and tiles.

4. That the Tenant has faithfully met her obligations as the Tenant including paying rent regularly.

The affidavit in support of the Tenant’s application more or less reiterates the grounds set forth above.

The Tenant swore a further affidavit on 26/3/2021 which I proceed to summarize as follows:

1. That the Tenant is not an employee of one Robert Kithinji Ringera as she runs her own electrical business.

2. That the Landlord has not disclosed to the Tribunal that he illegally entered into the Tenant’s business premises and demolished the floor, roof and disconnected electricity in a bid to illegally evict the Tenant.

The Tenant’s application is opposed.

The Landlord has sworn a replying affidavit on 23/3/2021 which I summarise as follows:

1. That the temporary orders issued herein were issued fraudulently as the applicant is an imposter.

2. That the Respondents proper tenant is one ROBERT KITHINJI RINGERA.

3. That the Applicant herein is an employees of the said ROBERT KITHINJI RINGERA “where they set up an electrical appliance sales business”.

4. That on 10/8/2020, the Respondent issued a notice to terminate tenancy to the said ROBERT KITHINJI RINGERA.

5. That there is no agreement between the parties herein.

6. That the receipts the Tenant/Applicant is relying on show that she was paying rent on behalf of one ROBERT KITHINJI RINGERA.

7. That the Applicant has inssisted on squatting on the Landlords premises even after the real Tenant ROBERT KITHINJI has agreed to vacate the premises.

The parties submitted orally on 5/5/2021 when the application came up for hearing. The Tenant/Applicant relied on her affidavits and further added:

1. That the Landlord has deactivated her KPLC account.

2. That her monthly rent is Kshs.30,000/-.

3. That every time, since January 2021, whenever the Tenant pays Kshs.30,000/- the landlord refunds Kshs.25,000/- and retains Kshs.5,000/-.

4. That the Landlord had reduced rent to Kshs.25,000/- during the Covid season.

On his part, the Landlord relied on his replying affidavit in opposition to the Tenant’s application.

I have considered the affidavits sworn by the parties herein and their submissions. In my view, the following are the issues that call for determination.

1. Does there exist a Landlord/Tenant Relationship between the parties therein?

If Yes, what is the nature of the said Tenancy relationship?.

2. Is the Tenant entitled to the prayers she has sought in her application dated 8/1/2021?

ON ISSUE NO. 1:

The Tenant/applicant has stated that she operates a business on plot No. B11/144 belonging to the Landlord. The landlord has disputed that the Tenant/applicant is indeed his Tenant.

The landlord states that his Tenant is one ROBERT KITHINJI RINGERA. Indeed the landlord has annexed a lease agreement to his affidavit, the agreement shows that ROBERT KITHINJI RINGERA is the Tenant on plot No. B11/144. The Landlord has also annexed to his affidavit a letter addressed to the said ROBERT KITHINJI RINGERA requiring him to vacate some unidentified premises.

The rent receipts referred to under paragraph 6 of the Tenant/applicant’s affidavit sworn on 8/1/2021 have not been annexed to the said affidavit.

I have seen the Tenant’s/Applicant’s exhibit PNG (i) (a) annexed to the Tenants supplementary affidavit. Whereas, the Tenant states that she operates a business called DOUBLE G11 SUPPLIES on plot NO. B11/144 MERU MUNICIPALITY the single business permit (FNG 1a) in support thereof clearly indicates the Business is physical address to be PLOT NO. B11/22. The Tenants exhibit FNG 1(b), the certificate of Registration of DOUBLE G11 SUPPLIES also indicates that the business is situated at PLOT NO. B11/128. In the absence of an explanation as to the relationship between plot Nos B11/144, B11/22 and B11/128 MERU MUNICIPALITY, I do find that these are different and distinct plots. I am unable from the material placed before me to establish any relationship and or connection that the Tenant has with plot No.B11/144. Further, the Tenant/Applicant has not explained her relationship with the disclosed Robert Kithinji Ringera, other than just denying that she was his employee.

On the strength of the lease agreement exhibited by the landlord between himself and one Robert Kithinji Ringera I am persuaded that the said ROBERT KITHINJI RINGERA is indeed the Tenant in the premises known as plot no. B11/144 belonging to the landlord. Further, there has not been placed any material before me to show/prove that the Tenant has pursuant to any agreement, written or oral, paid any rent to the Respondent.

I therefore do find that there does not exist any Landlord/Tenant Relationship between the Applicant and the Respondent herein. In the premises the contention that the Respondent did not issue any notice to vacate to the Applicant does not hold. The Tenant/applicant NOT being the Respondent’s Tenant no notice was necessary under section 4 of Cap 301.

In view of the above findings the answer to issue NO.2 as framed by myself is in the negative.

The Tenant/applicant’s application dated 8/1/2021 is hereby dismissed with costs to the Respondent.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING READ AND DELIVERED THIS 18TH DAY OF MAY 2021.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Fridah Gitobu- Tenant

No appearance for the Landlord