[2021] KEBPRT 102 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 296 OF 2021 (NAIROBI)

JARED MOGENI........................................APPLICANT

VERSUS

AGNES MUTUGI

SAVANA RESTAURANT GACHIE......RESPONDENT

RULING

1. The Tenant’s/Applicant’s notice of motion dated 25th March 2021 seeks the following orders;

a. Spent

b. Spent

c. Spent

d. That the Landlord/Respondent be prohibited from interfering with the Tenant’s peaceful occupation of the premises he occupies and uses as plot No 30 Gachie Market pending the hearing and determination of this case.

e. That this honourable Tribunal do declare the notice of vacation issued by the alleged Landlord to be defective, null and void.

f. That the Landlord/Respondent be prohibited from interfering with/altering the terms of the tenancy.

g. Costs.

2. The application is supported by the affidavit of Jared Cyrill Mogoi Mogeni which I summarize as follows;

a. That he has been a Tenant at Gachie plot No. 30 since2017 where he has rented two rooms at the monthly rent of Kshs 7,000/-.

b. That the Tenant has diligently performed his obligations to the Landlord by paying rent to David Muthee Mutungi until he died in 2019.

c. That upon the demise of the Landlord, the Tenant continued to pay rent to one Agnes Mutugi via mpesa No. 0712149550. These payments have been made on advice from the family of the deceased.

d. That on 1st February 2021, the Tenant received a notice to vacate the premises by 30th March 2021.

e. That the Respondent herein is the sole manager of Savannah Restaurant since the demise of her husband.

f. That the Tenant has developed the business from scratch for over four years and he stands to loose business if he is forced to vacate the suit premises.

g. That the Tenant is not in any rent arrears.

h. That the Respondent ought to obtain letters of administration to be able to challenge the Tenant’s tenancy.

i. That the Tenant’s agreement to pay rent to the Respondent is a gratuitous act of courtesy which the Respondent is now abusing.

3. The application is opposed. The Respondent has filed an affidavit sworn on 27th April 2021 and which I summarize as follows;

a. That there has never existed a controlled tenancy or any tenancy relationship between the parties herein.

b. That if at all there was any tenancy relationship the same then was between the Tenant and the deceased husband of the Respondent.

c. That the Respondent has never owned or managed the Savanna Restaurant Gachie.

d. That if at all there existed any tenancy between the Tenant and the deceased husband of the Respondent, then the said tenancy was terminated on the death of the said husband of the Respondent.

e. That the Tenant became a Tenant at sufferance and could be evicted at any time without notice.

f. That there existed no tenancy agreement between the parties but a licence and any money paid to the Respondent by the Tenant was pursuant to a licence agreement.

g. That the notice of vacation being challenged is not signed by the Respondent.

4. On 27th April 2021, the Respondent filed a notice of preliminary objection challenging the jurisdiction of the Tribunal on the basis that no controlled tenancy or any tenancy existed between the parties and that further the Respondent had no locus standi to be sued in these proceedings. The preliminary objection and the application have been argued by way of written submissions and which I summarize here below.

5. The Tenant’s/Applicant’s submissions were to the effect;

a. That the Tribunal has powers to determine whether or not any tenancy is a controlled tenancy.

b. That a lease is defined in the Land Act as…..”the grant, with or without consideration by the proprietor of land of the right to exclusive possession of his or her land, and includes the right so granted and the instrument granting it and also includes a sublease but does not include an agreement to lease.”

c. That a licence refers to the relationship where the licencee is given permission to enter into and/or use a premise, all without being granted exclusive possession to the property. The licencee has no interest in the property but can exclude anyone else from the property except the licencor.

d. That the Tenant has been in exclusive possession of the premises since 2017.

e. That the Respondent does not explain why she continued to receive the rent from the Tenant after the demise of her husband and at the same rates.

f. That the tenancy between the parties having not been in writing, the same was a controlled one. The tenancy could only be terminated in the manner provided for under Cap 301.

g. That it can be argued that the Respondent took over the tenancy from her deceased husband.

h. That the Tenant’s possession of the suit premises is not a licence, the Applicant has enjoyed exclusive control of the suit premises and further, the conduct of the parties does not support the contention that the Tenant was a mere licencee.

i. That the Respondent assumed the position of the Landlord by issuing the notice.

j. The issue before the Tribunal is if the notice issued to the Applicant herein is in the prescribed form.

6. The Respondent’s submissions may be summarized as follows;

a. That the jurisdiction of the Tribunal is derived from section 12 of Cap 301.

b. That the question as to whether there exists a controlled tenancy between the parties can only be determined upon consideration of the affidavits of the parties.

c. That the Tenant’s business was housed within the main premises and the Tenant could only access his room though the main door of Savanna Restaurant.

d. That the Tenant admits at paragraph 3 of his affidavit that he was to occupy two rooms within Savanna Bar.

e. That section 2 of the Act (Act not specified) defines a tenancy as follows;

“Tenancy means a tenancy created by a lease or under lese by an agreement for a lease or under lease by a tenancy agreement or by operation of law and includes a sub-tenancy but does not include any relationship between a mortgagor and mortgage as such.”

The Land Act 2012 defines a license as follows;

License means a permission given by the commission in respect of public land or proprietor in respect of private or community land or a lease which allows the licensee to do some act in relation to the land or the land comprised in the lease which would otherwise be a trespass but does not include an easement or a profit.

f. That the Tenant was only granted a license to use the premises as a stockist, he had no exclusive possession as the ultimate control of the premises was vested in the Respondent.

g. That the Respondent is a stranger to any tenancy agreement with the Tenant. The Tenant has brought this suit against the Respondent in her personal capacity and not as an administrator to the estate of the deceased.

h. That the Tenant’s tenancy if any determined upon the death of the Landlord.

i. That it has not been demonstrated that the Respondent is the administrator of the estate of her deceased husband.

j. The Respondent lacks the locus standito be sued hence the suit is fatally defective and ought to be dismissed.

7. The orders sought by the Tenant against the Respondent are injunctive in nature. They are interlocutory orders pending the hearing and determination of the complaint filed by the Tenant against the Respondent. The Applicant therefore has to satisfy the requirements for the grant of the orders of injunction as set out in the case of Giera Vs Casman Brown Co. Ltd [1973] EA 359, and I will deal with these principles separately.

A. Has the Tenant/Applicant shown a prima facie case with a probability of success?

a. In the case of Mrao Vs First American Bank of Kenya and Two Others [2003] KLR 125 a prima faciecase was described as;

“A prima facie case in a civil application includes but is not confined to a genuine and arguable case. It is a case which on the material presented to the court, a Tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

b. The Tenant/Applicant has demonstrated that he is in possession of his demised premises and he has been there since2017. He has demonstrated that he was in the premises during the lifetime of the deceased husband of the Respondent.

c. The Respondent has continued to receive payment from the Tenant/Applicant. Although the Respondent has not categorically denied receiving payments from the Tenant/Applicant, the Respondent states that any such payment could only have been pursuant to a license agreement. The Tenant on the other hand has insisted that the relationship between him and the deceased husband of the Respondent was a tenancy and a controlled one for that matter.

d. Whether or not the Tenant was a Tenant or a licencee is a matter to be determined based on the circumstances or conduct of the parties. It is a matter which ought to be considered during the hearing of the complaint and cannot be determined at this interlocutory stage.

e. In the case of National Social Security Fund Vs Sokomania Limited & 3 Others ELC Appeal No 60’B’ of 2016, the Court held as follows;

“With regards to grounds 2 and 4 of appeal, I am in agreement with the Appellant that the Tribunal made several conclusive findings that it was not supposed to make in an interlocutory application.

f. The issue as to whether the relationship was that of a Landlord and Tenant or a licensor and licensee could only be determined conclusively at the hearing of the complaint.

g. The Respondent has also raised the issue that she lacks the locus standi to be sued. The basis for this is that it has not been demonstrated that she is the administrator of the estate of her deceased husband. There is evidence that the Respondent continued to receive payments from the Tenant after the demise of her husband. Were these payments representing rent for the suit premises? Did the Respondent assume the responsibilities of a Landlord? This again is a matter to be determined upon the full hearing of the complaint. This is more so in view of the fact that the Act Cap 301 defines Landlord as follows;

“Landlord” in relation to a tenancy means the person for the time being entitled as between himself and the Tenant to the rents and profits of the premises payable under the terms of the tenancy.”

h. Was the Respondent the person entitled to the rents and profits of the premises? Did the payment to her of any money make her the Landlord of the suit premises? It is difficult to determine these issues at an interlocutory stage.

i. I am in these circumstances satisfied that he has a prima facie case with a probability of success.

B. Whether the Tenant/Applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages.

a. At paragraph 11 of his affidavit, the Tenant/Applicant has deponed as follows;

“That I know of my knowledge that I have developed the business from scratch over four years and I have been able to attract and retain clients and customers from Gachie and its environs through marketing and networking and have built a formidable clientele and sustainable goodwill which I stand to loose together with profits should I be forced to vacate the premises as envisaged in the defective notice.”

b. I am satisfied that on the basis of the above statement of the Tenant under oath that the “intended” eviction would bring the Tenant’s business to a standstill. That eventually would expose the Tenant to a loss which would not be compensated by an award of damages.

c. The Tribunal not being in doubt on the applicability of the first two limbs, I need not consider or decide this application on the balance of convenience.

8 It is in order that the suit premises be preserved pending the hearing of the complaint by the Tenant.

9. Consequently, I allow the Tenant’s application dated 25th March 2021 in terms of prayers 4, 6 and 7 of the said application.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered by Hon Cyprian Mugambi Nguthari this 21stday of October 2021 in the presence of Mr Ndichu for theLandlord and in the absence of the Tenant and Counsel.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL