[2021] KEBPRT 120 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL AT NAKURU

TRIBUNAL CASE NO.146 OF 2020 (NAKURU)

GOODY RUHU AMUNABI...............................................................1ST TENANT/RESPONDENT

GRACE VINCENT OPONDO..........................................................2ND TENANT/RESPONDENT

VERSUS

DOROTHY DEMBA ..............................................................................LANDLADY/APPLICANT

RULING

This matter coming up for Ruling on the Landlady/Applicant’s application dated 30th June 2021.

Parties and Their Representatives

1. The Landlady/Applicant DOROTHY DEMBA(hereinafter the “Applicant”) is the proprietor of all that business premise known as Njoro Ngata/Block 1/307 (hereinafter “the suit premises”) situated in Nakuru County.

2. The Firm of Alosa & Associates Advocates is on record for the Applicant.

3. The Tenants/Respondents GOODY RUHU AMUNABI and GRACE VINCENT OPONDO(hereinafter the “Respondents”) have been tenants in the suit premises since 2015 where the Respondents run an Agrovet Business and a salon business respectively.

4. The Firm of Raydon Mwangi & Associates Advocates is on record for the Respondents. (Email:raydonmwanginassociates@gmail.com)

The Background of the Dispute

5. Vide a Reference dated 3rd December 2020, the Respondents averred that the Applicant had unlawfully and illegally issued a notice of increment or rent which would result to payment of rent that is unreasonably high compared to other similar premises in the area.

6. The said reference was accompanied by a notice of motion dated on even date and in which the Respondents sought injunctive orders restraining the Applicant from increasing the rent, altering the terms of the tenancy or evicting the Respondents from the premises pending hearing and determination of the Application, and further, that the Applicant’s notice of rent increment be rendered defective and unlawful.

7. Subsequently, the Applicant filed an application dated 14th June 2021 in which she sought orders that the application be certified urgent and that this Honourable Court be pleased to issue eviction orders against the Respondents to enable the Applicant undertake renovations in the suit premises.

8. The ground relied upon by the Applicant is that she had received a statutory notice dated 14th June 2021 from the County Government of Nakuru requiring abatement of nuisance in the suit premises due to inadequate sanitary facility in the premises used by the Respondents. The Applicant was also required to construct two water closets and bathrooms for separate use by male and female Tenants failure to which the Applicant would be exposed to closing orders under the Public Health Act.

Jurisdiction

9. The jurisdiction of this Tribunal is not in dispute.

Issue for Determination

10. Whether the Applicant is entitled to vacant possession of the suit premises?

Applicant’s Submissions

11. The Applicant submitted that she was served by a statutory notice dated 14th June 2021 which required abatement of nuisance due to inadequate sanitary facilities in the Applicant’s residential plot used by the Respondents herein.

12. The Applicant further submitted that she is willing to give the Respondents priority to lease the premises after she has complied with the mandatory Statutory Notice by the County Government of Nakuru and which will provide a conducive and habitable Environment for the Respondents to carry on their business

13. The Applicant avers that she intends to redesign the building by developing modern and compliant units to replace the current building and to accommodate the toilets

Respondents’ Submissions

14. In opposing the Application, the Respondents relied on the replying affidavit and submissions dated 16th August 2021, 30th August 2021 and further submissions dated8th November 2021.

15. The Respondents averred that the notice was issued to the Applicant on 14th June 2021 giving her 21 days to comply and further, that the said notice expired on 5th July 2021 and no action had been taken since then.

16. It is the Respondents’ assertion that the construction of the sanitary facilities is not done within the place of business but outside where they conduct their business and does not in any way touch the space where they work from.

17. The Respondents further aver that the said notice from the County Government requires the Applicant to construct water closets and bathrooms as per the approved plans which plans were not annexed to the application. Respondents aver that the amount of work to be carried out by the Applicant is not ascertained and it does not indicate how the intended construction affects the Respondents occupation of the suit premises to warrant their eviction.

18. Lastly, the Respondents aver that they have established businesses which they have grown since 2015 and that permitting the Applicant to evict them without reasonable cause would be unfair as they would lose on their source of income and the good will they have acquired for the past 6 years.

Analysis and Determination

I. Whether the Applicant is entitled to vacant possession of the suit premises?

19. Article 42 of the Constitution of Kenya 2010 provides that every person has the right to a clean and healthy environment and this includes proper sanitation. In addition, Article 70 provides for mechanisms of enforcement of environmental rights and which includes making an order compelling a person to prevent, stop or discontinue any act or omission that is harmful to the environment.

20. The Applicant herein has sought to evict the Respondents from the suit premises on two grounds:

i. The Applicant intends to comply with a statutory notice dated 14th June 2021 issued by the County Government of Nakuru, which notice indicated that the suit premises had inadequate sanitary facilities for use by the tenants and required the Applicant to construct two water closets and bathrooms for female and male tenants using the approved plans.

ii. In order for the Applicant to comply with the said Notice, it would be prudent that the Respondents herein vacate the suit premises to enable her carry the construction works. The Applicant relied on section 7 (1)(f)of Landlord and Tenant (Shops, Hotels and Catering Establishments) Cap 301 Laws of Kenya (hereinafter “Cap 301”) which provides:

“that on the termination of the tenancy the landlord intends to demolish or reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises.”

21. On the other hand, the Respondents in their replying affidavit have averred that the sanitation facilities in the suit premises are sufficient and adequate and that there is no need for the Applicant to construct new toilets and bathrooms. The Respondents in their Replying Affidavit annexed photographs to confirm that there indeed exist sanitary facilities in the suit premises.

22. I have perused the said statutory notice dated 14th June 2021 as annexed by the Applicant (annexure “DD1”) the supporting affidavit”. The said Notice indicates that it was issued by the County Government of Nakuru, Department of Health Services pursuant to section 115 as read with section 118 (1)(b)of the Public Health Act Cap 242 Laws of Kenya. The purpose of the notice is clearly stated therein:

“TAKE NOTICE, that, under the provision of the Public Health Act Cap 242, the office being satisfied with the existence of nuisance at YOUR PLOT PLLOT NO 1/307 – NGATA NJORO (OLIVE IN AREA) DUE TO inadequate sanitary facilities in your residential Plot for use by your tenants.”

23. In addition, the actions that the Applicant was expected to take to abate the nuisance are also stipulated in the notice and a timeline for compliance stated in the following terms:

“Do hereby require you within 21 daysfrom the date and time of service of this notice to abate the same and for the purpose to: Construct two water closets and bathrooms for female and tow water closets, bathrooms for male plus a urinal using approved plans for use by your tenants.”

24. From the outset, I note that the said notice has since expired with the 21 days of compliance issued having lapsed, as has been averred by the Respondents in their pleadings. However, I note that being a Public Health issue, and which may have adverse effects on not only the Respondents herein, but the general public living and conducting their businesses near the suit premises, compliance with the notice, if valid, is a necessary in the interest of the public.

25. Further to the above, I stand guided by the pronouncements of the decision of the Court of Appeal in the case of Republic v Kabue Kigera [1986] eKLR (Bosire J and Mbaluto J) where the Court in agreeing with the position of the Parties with regard to the importance of Public Health stated as follows:

“…Public Health Matters are so fundamentally important that they ought not and should not be made subject to lesser matters of security of tenure (of the tenants).”

26. It is trite law that being lessees of the Applicant, the Respondents herein are entitled to quiet enjoyment and possession of the rented premises. In addition, the suit premises must be habitable and suitable for human habitation and this includes proper sanitary facilities. Though the Respondents have alleged that sanitary facilities are available in the premises, they have not demonstrated that the same is sufficient or as per the standard required by the Department of Health Services.

27. I verily believe that the County Government does not issue notices in vain or based on unreasonable grounds. The validity of the said Notice has not been challenges substantively, other than by mere allegations by the Respondents that the same was procured by the Applicant maliciously, without conclusive proof of the same.

28. Based on the foregoing, it is my finding that the Applicant has a statutory mandate to ensure that there are adequate sanitation facilities in the premises to ensure the suit premises meet the required standards. Denying the Applicant, the opportunity to enhance the sanitation facilities of the suit premises will have a negative impact not only on the Respondents, but also on the surrounding neighbors.

29. Additionally, Section 7 (1)(f) of Cap 301 provides that “the landlord intends to demolish or reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises.”

30. The construction of toilets is a labour intensive process and constitutes substantial work of construction. As submitted by the Applicant, to which I agree, it would not be reasonable for the Applicant to carry out the constructions with the Respondents in occupation of the suit premises.

31. Based on the foregoing, it is my finding that the Applicant has met the threshold of Section 7 (1)(f) of the Act that “the landlord intends to demolish or reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises.”

32. Simultaneously, I am cognizant of the fact that the tenancy of the Respondents in the suit premises, being protected tenants according to Cap 301 Laws of Kenya may only be terminated in accordance with the provisions of the Act. In this regard, the Applicant cannot purport to seek possession of the suit premises without following due process of the law.

33. Indeed, the High Court at Nairobi in the case of Republic vs Kisanga & 8 others [1989] eKLR,emphasized on the importance of striking a balance between the rights of a protected tenant vis-a-vis the requirement of a landlord to comply with an order issued under the Public Health Act. The Court stated as follows:

“Whilst an order under the Public Health Act may be made despite the existence of a protected tenancy…the Magistrate who makes the order should ensure that the protected tenancy should be interefered with as little as possible, consistent with the commonweal. It would be wrong, we think, totally to ignore the fact that there was a protected tenancy and such comments apply with as much force when the tenancy is not protected. The order should be sufficient, but no more, to achieve its purpose, the protection of the health of the public.”

34. The Court went ahead and stated that “…and the other matter which we wish to draw to the attention of all parties is that a closure order under the Public Health Act for repairs to be effected is merely a temporary interruption of a protected tenancy under an order of the court: we cannot see how it could be said to terminate it, for it could only be terminated under the protecting act: the Public Health Act does not purport to terminate tenancies by closure on the contrary (see S 121 (9)).”

35. The proverb, prevention is better than cure correctly applies to this present matter. Taking into consideration that no order for closure has been issued in respect of the suit premises as envisaged in the Public Health Act, disregarding the Notice from the County Government requiring enhancement of the sanitary facilities for the premises may cause extreme deterioration of sanitation in the area, which could be timeously avoided.

36. I also note that the Applicant has in paragraph 10 of the Supporting Affidavit sworn on 29th June 2021 stated that “THAT upon renovation I am willing to give the Respondents priority to lease the premises again.”This has been reiterated in concluding statements in the Applicant’s submissions.

37. From the above averments and in light of the aforementioned authorities, it is my considered view that the Applicant seeks to temporarily acquire possession of the suit premises for purpose of renovations and compliance with the notice and thereafter, lease the premises again to the Respondents on priority basis.

38. In order to avoid any human catastrophy that could occur due to lack of adequate sanitation facilities and in the interest of the general public, I hereby proceed to make the following orders:

a) The application dated 30th June 2021 be and is hereby allowed.

b) The Respondents shall within sixty (60) days from the date hereof vacate the suit premises to allow the Applicant to construct the toilets and bathrooms in the suit premises as required.

c) Upon completion of the construction, the Applicant shall give priority to the Respondents to rent the suit premises on terms to be agreed.

d) OCS Menengai to assist in compliance and maintain peace.

e) Each party shall bear its own costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 2ndday ofDecember 2021 in the presence of Ndichufor theTenants and Mosefor theLandlord.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL