[2022] KEBPRT 252 (KLR)

Jacob v Namu (Tribunal Case E010 of 2022) [2022] KEBPRT 252 (KLR) (Civ) (15 July 2022) (Ruling)

Neutral citation: [2022] KEBPRT 252 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E010 of 2022

Gakuhi Chege, Vice Chair

July 15, 2022

Between

Hellen Njoki Jacob

Applicant

and

John Munene Namu

Respondent

Ruling

1. The applicant moved this Tribunal under section 12(4) of Cap. 301, Laws of Kenya by way of a reference dated 24th February 2022 complaining that on 20th February 2022, the landlord gave her notice through a message to vacate the leased premises. She further complains that the tenancy being controlled, the landlord did not issue her with 60 days notice and that she stood to suffer irrepably.

2. She simultaneously filed a notice of motion dated 24th February 2022 seeking for restraining orders against the landlord from interfering in any way with the leased premises in Kawanjara Market, Embu County pending determination of the claim.

3. The application is supported by the applicant’s affidavit of even date and the grounds on the face of the application. She deposes that she leased the suit premises from the Respondent in November 2021 but the latter refused to reduce the agreement into writing. The lease was for two years. The monthly rent was agreed at Kshs.6000/-.

4. The applicant deposes that she developed the property with consent of the relevant authorities and that she paid Kshs.10,000/- for the months of November and December 2021. She operates a butchery on the premises.

5. On 20th February 2022, the Respondent wrote a message to the applicant requiring her to vacate by end of February 2022 from the suit premises. The Respondent did not issue the mandatory sixty (60) days notice for termination of tenancy.

6. As a result, the applicant fearing eviction approached this Tribunal and obtained interim orders on 3rd March 2022 restraining the landlord in the pendency of hearing of application inter-partes.

7. The applicant was subsequently issued with another order on 18th March 2022 directing the landlord to restore the front door of the suit premises failing which she was authorized to do so with the assistance of OCS, Runyenjes Police Station at the landlord’s cost.

8. On 23rd March 2022, the Respondent moved this Tribunal through a motion of even date seeking for an order that the temporary injunction issued on 3rd March 2022 be marked as abated and/or discharged on the grounds that the suit premises was leased to him vide a lease agreement dated 8th April 2017 entered between him and Joseph Njeru Ndwiga. The agreement provides that the Respondent has no authority to sublet any part of the premises but to use the same as a club/restaurant.

9. It is the Respondent’s case that the applicant misled the Tribunal to grant the interim orders by giving false information that there was a tenancy relationship between her and the Respondent. The lease agreement is annexed to the supporting affidavit of the applicant and marked ‘JMM1’.

10. It is the Respondent’s case that he has never leased any part of the premises to the applicant herein as he has no authority to sublet and risked cancellation of his own lease.

11. The Respondent also filed a replying affidavit sworn on 16th March 2022 repeating the contents of the affidavit sworn in support of his application dated 23rd March 2022 in all material parts. I need not rehash its contents.

12. According to the Respondent, the application was brought to him by one John Muna Njue who is his longtime friend with a request for space to store some items as she sought for a business premises within Kawanjara. The Respondent agreed to the request as the applicant and her family were known to him.

13. According to the Respondent the said understanding was not meant to establish any type of landlord/tenant relationship but merely meant to help a friend with space. He maintains that he had no authority to sublet any part of the premises.

14. The Respondent avers that the applicant approached him to lease the premises to her but the discussion did not materialize for reasons that he would be in breach of the lease agreement. He deposes that he never received any rent from the applicant for the months of November and December 2021. The Respondent states that annexure ‘HNJ-1’ was an invoice and not a license as alleged by the applicant.

15. According to the Respondent, the message written to the applicant required her to pick her stored goods after she had overstayed beyond the agreed period. The Respondent contends that he never consented to any developments by the applicant within the premises.

16. The matter was ordered to proceed by way of written submissions and both parties complied.

17. Under section 12(4) of Cap. 301, this Tribunal is endowed with the power to investigate any complaint relating to a controlled tenancy made to it by the landlord or tenant and may make such order thereon as it deems fit. I shall therefore consider the reference and the two applications before me together as they all raise the same issues.

18. I shall consider the submissions filed herein together with the following issues for determination based on pleadings:-a.Whether there exists a landlord/tenant relationship between the parties herein.b.Whether the applicant is entitled to the orders sought in the application dated 24th February 2022 and the reference of even date.c.Whether the Respondent is entitled to the reliefs sought in the application dated 23rd March 2022. d.Who is liable to pay costs of the suit?

19. The applicant submits that there exists a verbal tenancy agreement between her and the Respondent for an unspecified period. It is submitted that the tenant pays Kshs.5000/- per month and operates a butchery in the leased premises. It is further submitted that the applicant will at the full hearing tender oral and documentary evidence to demonstrate the same.

20. On the other hand, the Respondent submits that his occupation of the suit premises is hinged on a lease agreement signed between him and Joseph Njeru Ndwiga which does not allow subletting under clause 10 thereof. The Respondent cites the cases of Ashanti Holdings Limited t/a Dass Restaurant – vs- PKF Kenya(2022) eKLR and New Soita Ltd – vs- Naivasha Southlake Sacco Ltd (2021) eKLR to submit that the only tenancy proved to exist is between him and Joseph Njeru Ndwiga. No evidence of payment of rent was tendered and that the Respondent could not collect rent from the applicant as the terms of the lease contract strictly forbid him from subletting the suit premises.

21. I have evaluated the materials placed before me and I have not come across any shred of evidence to prove that the applicant is a tenant of the Respondent. Although the applicant claims to have paid Kshs.100,000/- in respect of rent for the months of November and December 2021, no documentary or other evidence was produced to prove the said payment. I have looked at what the applicant refers to in her supporting affidavit as licenses and agree with the Respondent that it is an invoice from the County Government. There is absolutely no evidence that the applicant operates a butchery business within the suit premises separate from what was leased to the Respondent by Joseph Njeru Ndwiga.

22. The applicant submits that he shall tender documentary proof of her tenancy during the full hearing. It is trite law that an applicant for injunction must establish a prima facie case with a probability of success. It is not conceivable why the applicant would withhold tendering all the evidence required to prove her case unless she is engaged in a fishing expedition for evidence.

23. Having found that there is no prove of existence of a landlord/tenant relationship between the parties herein, the jurisdiction of this Tribunal ceases under Cap. 301, Laws of Kenya as such relationship is the foundation of any proceedings under the Act. It also follows that the applicant is disentitled to the reliefs sought in the suit. This is what was held in the suit. This is what was held in the case of Republic – vs- Chairperson, Business Premises Rent Tribunal at Nairobi & Another exparte Suraj Housing & Properties Ltd & 2 Others(2016) eKLR at page 7/11.

24. In the said case, the court cited with approval the decision in Pritam- vs- Ratilal & Another(1972) EA 560 as follows:-“As stated in the landlord and Tenant (shops, Hotels and Catering Establishments) Actitself, it is an Act of Parliament to make provision with respect to certain premises for the protection of such tenants from eviction or from exploitation and for matters connected therewith and incidental thereto. The scheme of this special legislation is to provide extra and special protection for tenants. A special class of tenants is created. Therefore, the existence of the relationship of landlord and tenant is a pre-requisite to the application of the Act and where such relationship does not exist or it has come to or been brought to an end, the provisions of the Act will not apply. The applicability of the Act is a condition precedent to the exercise of jurisdiction by a tribunal otherwise the tribunal will have no jurisdiction. There must be a controlled tenancy as defined in section 2 to which the provisions of the Act can be made to apply outside it, the tribunal has no jurisdiction”.

25. I find and hold that the applicant has failed to discharge her burden of proof under section 107, 108 and 109 of the Evidence Act Cap. So Laws of Kenya to demonstrate that there exists a landlord/tenant relationship between her and the Respondent.

26. In regard to the respondents application to discharge the interim orders given in this matter. I find and hold that the said orders have no foundation to stand on and even without the said application, the same are candidates for discharge ex-debito justitae.

27. Finally on the issue of costs, the same always follow the event unless for good reasons otherwise ordered. I have no good reasons not to exercise my discretion in awarding costs to the Respondent.

28. In conclusion therefore, the final orders that commend to me are:-i.The application dated 24th February 2022 and the reference of even date is dismissed on account of there being no landlord/tenant relationship between the parties herein.ii.The interim orders given herein on 3rd March 2022, 18th March 2022 and 30th March 2022 are hereby discharged/vacated.iii.The applicant shall pay Kshs.20,000/- as costs to the Respondent all inclusive.

RULING DATED, SIGNED AND DELIVERED THIS 15TH DAY OF JULY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Miss Maina for the Landlord/RespondentNo appearance for the Tenant