[2022] KEBPRT 126 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES AND RENT TRIBUNAL

TRIBUNAL CASE NO. E003 OF 2021 (EMBU)

JOHN KAMAU WAMBUI............................APPLICANT/TENANT

VERSUS

WILFRED NJOKA GATERI............RESPONDENT/ LANDLORD

RULING

Parties and their Representatives

1. The Applicant/Tenants rented shop space in, Plot no. A60 Wanguru, the suit premises (hereinafter referred to as the “Tenant”).

2. The Respondent/Landlord is the proprietor of the rental premises located in Wanguru town (hereinafter referred to as the “Landlord”)

3. On 26th February 2021,the Landlord issued the Tenant with a notice to terminate the tenancy on the grounds that the Tenant had breached the tenancy agreement by selling cooking gas in the suit premises.

4. The Tenant being aggrieved by the Landlords actions filed an application in the Tribunal on 24th June 2021 seeking temporary restraining orders as against the landlord and the same were granted and remain in force to-date.

Claim and Defence

10. The Tenant claims that there is no tenancy agreement between him and the Landlord that prohibits him from selling cooking gas and that the Landlord wants to illegally evict him.

11. The Landlord claims that the Tenant is in breach of the tenancy by changing the user of the premises without his consent from an Mpesa/equity agent shop to vending cooking gas.

Issues for Determination

12. The Parties raised certain issues for determination and the Tribunal shall proceed to distill the issue discussed by the Parties as below:

a) Whether the Landlord can lawfully evict the Tenant on Grounds of selling gas?

Analysis and Findings

Whether the Landlord can lawfully evict the Tenant.

13. Section 4(2)of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301provides the following on the termination of tenancies;

“A landlord who wishes to terminatea controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form.”

14. Section 4(5)of the abovementioned Act further provides:

A tenancy notice shall not be effective for any of the purposes of this Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration or reassessment concerned and requires the receiving party to notify the requesting party in writing, within one month after the date of receipt of the notice, whether or not he agrees to comply with the notice.

15. From the evidenced adduced before this Court, it is not disputed that the eviction notice issued by the landlord is in the prescribed Form A as provided for in section 4(1)of the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Tribunal) (Forms and Procedure) Regulations.

16. The Tenant, in his submission, he submits that the Landlord has not adduced sufficient reasons to evict him as provided in the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301. With respect to this section 7of the aforementioned Act provides for grounds on which landlord may seek to terminate tenancy. Section 7 (1)provides for one of the grounds as:

“…that the Tenant has committed other substantial breaches of his obligations under the tenancy, or for any other reason connected with the tenant’s use or management of the premises in the comprised tenancy.”

17. In his supporting affidavit dated 21st June 2021 the Tenant states that there is no lease agreement between himself and the Landlord that prohibits gas sale. The Tenant reiterates the same in his submissions.

18. In his Replying Affidavit, the Landlord produced a tenancy agreement dated 8th September 2014entered between himself and the Tenant. On the said Tenancy Agreement the occupation is clearly provided for to be M-pesa/Agent Equity.Additionally, clause 1 of the aforementioned agreement clearly states, “That the house or the premises shall not be used in any manner to which the Landlord considers to be dangerous to the building or their neighbours.

19. In the eviction notice dated 26th February 2021, the ground for termination given by the Landlord is, the Tenant’s breach of the agreement by selling cooking gas in the premises.

20. From the evidence adduced before this Court, I find that the Tenant is in breach of the tenancy agreement dated 8th September 2014. Further despite stating that he has the relevant license to ensure that he is operating the business within the confines of the law, the Tenant has not produced before this Court any evidence on the same.

ORDER

For the reasons given above I order as follows that;

a) The Tenant shall on or before the 30th of January 2022vacate the said premises and remove all his items.

b) The landlord shall take possession of the suit premises commencing 1st February 2022 failure to which he had break in with the OCS Wang’uru Policesupervising and keeping the peace.

c) Each party shall bear their own costs.

d) The reference is also compromised on similar terms.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 6TH DAY OF JANUARY 2022 IN THE PRESENCE OF WILFRED NJOKA GATURI (LANDLORD) AND IN THE ABSENCE OF THE TENANT.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL