[2021] KEBPRT 218 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 101 OF 2017 (NYERI)

JENNIFER WAMBUI NYAKINYUA........................................TENANT

VERSUS

FAIRMONT MT. KENYA SAFARI CLUB........................LANDLORD

JUDGMENT

1. This matter proceeded before the former Chairman Hon. Mbichi Mboroki to conclusion and the only issue that remained was writing of the judgment as he retired before it was ready.

2. This judgment is therefore written by me pursuant to order 18 Rule 8 of the Civil Procedure Rules which allows dealing with evidence taken down before another judicial officer as if such evidence had been taken down by me and to proceed with the suit from the stage my predecessor left it.

3. The genesis of this case is a reference filed on 5th August 2011 by the Tenant against the Landlord in which she complained that the latter was threatening to evict her without issuing a statutory notice.

4. She further complained that the Landlord was harassing her to sign a contract for 6 months.

5. The Landlord also served a notice dated 16th June 2017 seeking to terminate tenancy with effect from 1st September 2017 on the grounds that:-

(a) ‘’Due to office space needs, the Fairmont Mount Kenya Safari Club intends to re-occupy the premises the subject of this notice for use as a finance office.

(b) For a number of years now, you (as tenant) have not paid any rent for the occupation and use of the subject premises and for the past year so, you have left the salon locked and inaccessible and more so, the portion of the semi permanent structure which you previously occupied has fallen into total disrepair.

(c) On termination of the tenancy, the landlord intends to carry out substantial works of construction on the premises that it cannot possibly do without obtaining vacant possession. The construction works would not only include reconstruction of the leaking roof, rebuilding and plastering the walls, removal and re-installation of plumbing system as well as painting but a total demolition and re-construction of the entire semi permanent structure”.

6. The Tenant filed a reference dated 23rd August 2017. The Landlord through a replying affidavit of Florence Atieno Okong’o sworn on 15th March 2018 opposes the said reference.

7. By an application dated 15th March 2018, the Landlord sought for an order that an inspection of the subject premises be done and a report filed before further proceedings could be taken herein.

8. It also sought for an order that the Tenant/Respondent gives vacant possession of the premises to it together with a break in order to gain vacant possession.

9. The application is supported by the affidavit of Florence Atieno Okong’o sworn on 15th march 2018 and the grounds set out on the face of the application.

10. The Tenant filed a replying affidavit sworn on 2nd July 2018 in which she denies abandoning the suit premises confirming that the leased premises fell into a state of disrepair to an extent that she went to work one morning and found that some of ceiling boards had fallen on her hair salon equipment and that the roofing material was leaking leading to the hair saloon becoming messy.

11. The tenant deposes that the state of disrepair came into being either accidentally or by design as the landlord had used all means to frustrate her occupation since the demise of her mother.

12. The Tenant complains of harassment by the Landlord’s agents through denial of access to the business premises and her customers being informed that she had closed down.

13. On 6th July 2018, a consent order was recorded to escalate the issues raised in the application dated 15th March 2018 to the full hearing and parties were granted liberty to file their bundle of documents.

14. On 20th September 2018, this Tribunal ordered its Rent inspector to inspect the premises in the presence of the Landlord’s agent and the tenant on a date to be agreed.

15. The said inspection took place and a report was filed on 26th October 2018 confirming that the premises was in a “dilapidated state, both inside and outside, the roof is leaking, the ceiling damaged, the entrance wood staircases are damaged”.

16. The matter proceeded to hearing on 7th December 2018 with Florence Atieno Okong’o filing evidence on behalf of the Landlord whose evidence was a repetition of what I have narrated above in respect of the termination notice and her replying affidavit to the reference.

17. According to the witness, the Tenant’s mother was the original Tenant but died on 18th December 1989 whereupon she took over the premises.

18. It was the witness’ testimony that the Landlord intends to put up a new office structure as the rear of the hotel had been refurbished. She stated that the premises were closed from 2014 and that the tenant was not using it.

19. The Tenant was also not paying rent and the last rent payment was in 1990 as per the receipts annexed to her bundle of documents.

20. In cross-examination, the witness stated that she did not have documents in respect of the proposed building office block although she had seen the structural drawings. She did not know the cost of the office block.

21. She confirmed that finances were available and that the tenant’s properties were still in the premises. She maintained that the Tenant had been given a chance to improve the state of the premises.

22. The witness stated that she did not know the total rent in arrears although the tenant had not paid rent since 1990 stating that she was waiting for the Tribunal to determine the monthly rent.

23. During further cross examination, the witness stated that the salon business premises was in a strategic place next to the main entrance of the hotel and the state of repair thereof had affected the standard of services rendered to the hotel customers. She maintained that the Landlord intended to demolish the semi permanent structures and utilize the space.

24. The Tenant testified and relied on her bundle of documents as exhibits. She stated that the value of her broken drier worth Kshs.70,000/- was to be utilized to defray rent at a rate of Ksh.400/- per month.

25. She confirmed in her own evidence that no business could be carried out in the suit premises in its current condition. She confirmed that she was not paying rent. She maintained that the Landlord does not want to rebuild the property but just want her to vacate the suit premises.

26. In cross-examination, the Tenant stated that she had no agreement with the Landlord’s manager that the cost of the drier could be deducted from rent.

27. She confirmed that she had not paid any rent after 5th August 2011 as the Landlord owed her money.

28. Parties were directed to file written submissions after closing their respective cases but only the Landlord’s counsel complied.

29. The following issues emerge for determination in this cases:-

(a) Whether the Tenant’s references dated 5th April 2011 and 23rd August 2017 ought to succeed or fail.

(b) Whether the Landlord’s notice dated 16th June 2017 ought to be upheld or dismissed.

30. The dispute between the two parties herein revolve around the use of a salon premises situate within the Landlord’s Club in Nanyuki.

31. The initial tenant in respect of the suit premises was one Phylis Nyakinyua Waweru who died on 18th December 1989. She was the mother to the current tenant.

32. It is not in dispute that she was by the time of death paying a monthly rent of Kshs.400/-. After her death, the current Tenant took over the business and it is not clear how the parties related between 1990 and 2011 when it is stated that the management of the said hotel changed and the relationship started deteriorating.

33. The only rent payment receipt by the current Tenant exhibited herein was issued on 3rd July 1990. She has not demonstrated making any other payment for the last 31 years.

34. Sometimes on 6th May 2011, the Landlord’s General manager wrote to the tenant raising several hygiene issues pertaining to the operation of the Tenant’s Business.

35. He also indicated in the letter that the Tenant was not paying rent to run the salon which made it impossible to renovate it for her.

36. By another letter dated 20th June 2011, the General Manager repeated the contents of the previous letter and noted the general state of disrepair of the salon premises which did not reflect well on the hotel brand and requested for immediate redress thereof by the Tenant.

37. It was indicated in the said letter that the Landlord would charge Kshs.5,000/- per month in rent starting from July 2011 among other requirements in case the tenant wished the hotel to renovate the leaking roof, torn door walls, redo the sinks and painting.

38. On 4th August 2011, the General manager wrote another letter alluding to a conversation of 3rd August 2011 regarding signing of a contract between the hotel and the Tenant which had been given to the latter three (3) weeks before but which had not been acted upon. He intimated that unless the signed contract was received, it would be assumed that she did not wish to continue doing salon business at the club and an alternative person would be sought to do so.

39. The last letter precipitated the filing of this reference which has since gone to the High Court and back.

40. The said letters in my view were not termination notices to warrant the Tenant to challenge them by way of a reference before this Tribunal.

41. In the premises, I find and hold that the reference dated 5th April 2011 being based on non-existent termination notice has no legs to stand on and is hereby dismissed with costs.

42. In regard to the second reference dated 23rd August 2021, I note that there is no dispute that the suit premises is in utter state of disrepair which all the parties and the rent inspector confirms.

43. The Tenant conceded in evidence that she had to close down her business on account of the said state of affairs in the year 2014. She cannot blame the Landlord for it as she confirmed that she has not been paying rent.

44. A Tenant who does not pay rent cannot expect a Landlord to seek alternative sources of funds to maintain a demised premises. He who comes to equity must do equity.

45. I believe that the Landlord has a genuine desire to demolish the building hosting the suit premises with a view to putting up an office block as stated by its witness and the notice to terminate.

46. I take judicial notice that the hotel is a premier 5 state hotel with a name to keep and protect and it would be unreasonable to keep it away from plans for refurbishment of its premises while protecting a tenant who has not been paying rent since 1990. Such an approach would be inequitable and unjust. No court of law is entitled to do injustice to a party appearing before it.

47. In the circumstances, the reference by Tenant dated 23rd August 2017 is also dismissed with costs and the Landlord’s notice to terminate tenancy dated 16th June 2017 is upheld.

48. In conclusion, I make the following final orders:-

(a) The Tenant’s reference dated 5th April 2011 is hereby dismissed with costs.

(b) The Tenant’s reference dated 23rd August 2017 is hereby dismissed with costs and the Landlord’s notice to terminate tenancy dated 16th June 2017 is upheld.

(c) The Tenant shall forthwith give vacant possession to the Landlord and in any event within the next seven (7) days hereof failing which

(d) she will be forcibly removed therefrom by a licensed auctioneer with the O.C.S. within whose jurisdiction the premises are situate providing security.

(e) Costs of the two references are awarded to the Landlord.

It is so ordered.

RULING DATED, SIGNED & DELIVERED THIS 24TH SEPTEMBER 2021VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Nduta for Mugambi for the Landlord

No appearance for the Tenant