[2021] KEBPRT 121 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 786 OF 2020 (NAIROBI)

JOHN KIBOI KIGWERU KIGWERU.......................................TENANT/1ST APPLICANT

OBADIA NDWIGA NJIRU..........................................................TENANT/2ND APPLICANT

JOSEPH KIARIE NJENGA........................................................TENANT/3RD APPLICANT

VERSUS

JANE WANJIKU NGIGI..................................................................................RESPONDENT

JUDGEMENT

1. The Tenant’s reference dated 18th August 2020 has been brought in opposition to the Landlord’s notice to terminate tenancy dated 22nd July 2020. The grounds upon which the Landlord sought to terminate the tenancy are found at paragraph 3 of the notice which is in the following terms;

3. “The grounds on which I seek termination are that despite my various and several demands that you have continuously defaulted in paying rent for a period of 2(two) months after such rent has become due and or payable being the months of June andJuly 2020in blatant breach of our tenancy agreement dated 7th February 2019. ”

2. This matter proceeded for hearing on 6th September 2021 and I summarize the evidence of the parties as follows;

3. The Landlord’s Case; M/S Jane Wanjiku the Landlady, in her evidence in chief stated as follows;

a. That the Applicants occupy as Tenants, her two plots measuring 50 ft by 100 ft each.

b. That the rent for each plot was Kshs 25,000/- and the total payable was therefore Kshs 50,000/-.

c. That the Tenants paid this rent for three years, 2017 to 2020 but stopped paying the rent in April 2020.

d. That the Tenants were not to construct permanent structures on the premises, they had earlier agreed to move out with their structures.

Upon cross-examination the Landlady stated;

e. That the agreement in court is the one for the year 2019 as the one for 2017 was cancelled.

f. That the plots are contained in one title but separately measure 50 x 100 feet each.

g. That she considers her plots to be two.

h. That the agreement was for Kshs 50,000/- per month for three years with increment due after the three years.

i. That there was no agreement for Kshs 50,000/- because the Landlady was friends with the Applicants/Tenants.

j. That the temporary structures on the suit land belongs to the Applicants although they were not to construct anything on the land.

k. That the Landlady did not allow them to construct a restaurant.

l. That the Land belongs to the Landlady’s daughter who had allowed the Landlady to lease out the same.

m. That the Applicants/Tenants requested the Landlady’s son for time to allow them vacate the premises.

4. The Tenant’s Case; Mr Joseph Kiarie Njenga in his evidence in chief stated as follows;

a. That he relies on his affidavit sworn on 31st May 2021 and his statement dated 30th July 2021. He also relies on the documents that he has filed with the Tribunal.

b. That the plot the Applicants leased from the Landlady was on one plot and the agreed rent was Kshs 25,000/- per month. That is the amount provided for in the agreement.

c. That the Applicants paid a deposit for two months.

5. The affidavit of the witness sworn on31st May 2021may be summarized as follows;

a. That the Tenants operate a bar and restaurant in the suit premises.

b. That the rent payable is provided for under clause 4 of the lease agreement.

c. That the Tenants decided to continue paying rent in advance at the rate of Kshs 25,000/- every month.

d. That the total amount of rent paid as at March 2021 is a sum of Kshs 2,100,000/- and the amount due to the Landlady from April 2017 to May 2021 is Kshs 1,225,000/-and therefore the Tenants have paid rent in excess by Kshs 875,000/-.

6. Upon cross-examination, the Witness/Tenant stated as follows;

a. That he was paying the rent in advance.

b. That it is not indicated that the rent would be paid in advance at Kshs 25,000/-.

c. That the Tenants have developed the premises by building a car wash and a restaurant.

d. That it is true that the Tenants agreed to vacate the premises at the expiry of the lease.

e. That the Tenants have never requested for a refund of the excess rent paid to the Landlady.

f. That it is true that nor everything was reduced into writing.

g. That the Tenants paid rent in advance to avoid problems with the Landlord.

h. That the Tenant has not written to the Landlady stating that he could not pay rent due to the excess payments/advance payments.

i. That the Tenant paid rent for thirty-six months at the rate of Kshs 50,000/- which the Landlady already knew was advance payment of rent.

j. That the advance payments were not reduced into writing as the Tenants did not anticipate any problems.

k. That it is not true that the Landlady did not understand the agreement as the same was done by her advocates.

7. The Tenant in re-examination further stated;

a. The leased land is the one shown in the agreement and it is a single unit. The lease agreement contains the land/parcels number.

b. That as at now, the Landlady is supposed to refund the excess payments.

c. That the excess payment was done on the basis of a promise to renew the lease after five years.

8. The Applicants/Tenant’s written submissions may be summarized as follows;

a. That the Tenants rehabilitated the suit land then a swampy area at a cost of Kshs 400,000/- and built a semi-permanent structure at a cost of Kshs 300,000/-.

b.That the monthly rent payable is Kshs 25,000/- and not Kshs 50,000/-.

c. That the Tenants paid Kshs 50,000/- being rent for the months of April and May 2018.

d. That the Landlord has conceded that the agreement provides for Kshs 25,000/- as the rent payable.

e. That the written lease supersedes any implied or oral agreement, parties are bound by their agreements and it is not for the court to rewrite the terms of the contract for the parties.

f. That the total amount of rent paid as at March 2021is a sum of Kshs 2,100,000/- and the amount due to the Landlady/Respondent is Kshs 1,225,000/-. The Tenants have therefore overpaid rent by Kshs 875,000/-.

9. The Landlady’s/Respondents Submissions may also be summarized as follows;

a. That the Tenants have paid a monthly rent of Kshs 50,000/- from the commencement of the lease up to and until May 2020.

b. That the monthly rent of Kshs 25,000/- is erroneously indicated in the written lease agreement.

c. That the Landlord had earlier unsuccessfully tried to terminate the tenancy.

d. That the Tenants recovered the costs of Kshs 50,000/- awarded them in BPRT Case No 62B/2017 by withholding the rent for the month of February 2018.

e. That whether the Tenants have paid a total of Kshs 2,100,000/- or (according to them) or Kshs 1,900,000/- according to the Landlady, the amount paid so far by the Tenants surpasses the rent payable for the lease period if the same were to be based on the Tenant’s contention that the rent payable is Kshs 25,000/- pre month.

f. The Tenants, by their conduct of paying Kshs 50,000/- per month are prevented from going back on the said payments upon whose basis the Landlady has acted.

g. That the Tenants have admitted that they have not paid rent from the month of June 2021 to date.

10. Following from the above narration, the issues that in my humble view arise for determination in this matter are the following;

i. What was the rent payable over the suit/demised premises?

ii. Whether the Landlady is entitled to terminate the tenancy between himself and the Applicants/Tenants.

11. On issue (a)

a. Clause 4 of the lease agreement between the parties herein is in the following terms;

“The monthly payment shall be Kshs 25,000/- (Kenya shillings twenty-five thousand only) which totals up to Kshs 50,000/- (fifty thousand only) whereby the leasee shall pay the first instalments for two months which amounts to Kshs 50,000/- (Kenya shillings fifty thousand only).

b. Clause 5

“The lessor acknowledges receipt of Kshs 50,000/- (Kenya shillings fifty thousand only) in cash being the 1st instalment.”

c. The evidence of the Landlady is that the Tenants were paying rent in the sum of Kshs 50,000/- per month for the two plots comprised in the suit land. The Tenants on their part have held onto the position that the rent payable was Kshs 25,000/- per month and they only paid rent in advance to avoid problems with the Landlady. I have perused the lease agreement between the parties and I notice it has no provision for payment of rent in advance or a double payment of rent in advance/monthly.

d. The Tenants paid rent at the rate of Kshs 50,000/- for three years without raising the issue of any excess payments. Assuming the rent payable is Kshs 25,000 per month, the rent payable for the duration of the admitted three years would be 25,000 x 12 x 3 (1,500,000). And assuming the rent payable was Kshs 50,000/- per month, then the rent payable for the three years would be Kshs 1,800,000/-.

e. So on what basis did the Tenants pay the excess rent? The Tenants have stated that the excess rent was paid in anticipation of renewal of the lease, but I have not found any evidence to support this allegation.

f. I find it more plausible that the parties’ common intention was to have the rent paid at Kshs 50,000/- per month. The conduct of the parties to this dispute point irresistably to that conclusion. The Tenant in this matter indeed confirmed on cross-examination that not everything was reduced into writing and further stated that it is true that he paid rent at the monthly rate of Kshs 50,000/- for thirty-six months but he did not tell the Landlady that the payments were advance payments since the Landlady already know. The Landlady does not seem to admit of any such knowledge.

g.Clause 4 of the lease agreement is a Mumbo Jumbo mix-up of provisions. It states that the monthly payment shall be Kshs 25,000/-which totals up to Kshs 50,000/- whereby the Tenant will pay the 1st instalment for two months which amounts to Kshs 50,000/-.

h. It is not clear what the Kshs 50,000/- represented. Was it two months’ rent? Two instalments on rent? Deposit on rent? And how does the monthly payment of rent of Kshs 25,000/- total up to Kshs 50,000/-? The situation is further compounded by the provisions of clause 5 of the lease agreement which declares the Kshs 50,000/- the 1st instalment. The literal interpretation of clause 5 and the conduct of the parties leaves the impression that rent was payable in instalments of Kshs 50,000/-.

i. I now have to take the difficulty position of having to determine the rent implied in the circumstances of this case to be Kshs 50,000/- per month.

12. On Issue B

a. The Tenant on his own admission has not paid rent for the month of July to October 2020 and he states that the Applicants stopped paying rent due to the covid – 19 pandemic breakout. I have not seen any concession by the Landlady allowing the Tenant not to pay rent for the months of July to October 2020 or for any period of time for that matter. Having found that the rent payable is Kshs 50,000/- per month and not Kshs 25,000/- as alleged by the Tenants, the Tenants cannot be said to have paid any rent in excess.

b. In the circumstances, I do find that the notice to terminate the tenancy herein has merit and I approve the terms thereof.

13. Consequently, the tenancy between the parties is hereby terminated and the Tenants shall render vacant possession of the premises within the next sixty days failing which they will be evicted at the instance of the Landlord.

14. The Tenants are also ordered to pay any outstanding rent arrears based on the monthly rent of Kshs 58,000/- and costs of these proceedings assessed at Kshs 50,000/-.

15. For the avoidance of doubt, the Tenants’ reference to this Tribunal is dismissed.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Judgement dated, signed and delivered by Hon Cyprian Mugambi Nguthari this 25thday of November, 2021 in the presence of Miss Wambui Ng’ang’aforMatheafor Respondents and in the absence of the Tenants and counsel.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL