[2022] KEBPRT 194 (KLR)

Kaburu v Kanyiru (Tribunal Case E015 of 2021) [2022] KEBPRT 194 (KLR) (Civ) (26 July 2022) (Judgment)

Neutral citation: [2022] KEBPRT 194 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E015 of 2021

Gakuhi Chege, Vice Chair

July 26, 2022

Between

Peter Kaburu

Applicant

and

Glory Kanyiru

Respondent

Judgment

1. On 28th October 2021, the landlord issued a tenancy notice upon the tenant (Peter Kaburu) seeking to terminate his tenancy over Plot no. 3364 Kiengu Market with effect from 1st January 2022 on grounds that he had defaulted to pay rent when due and payable from July 2021 to October 2021 in the sum of Kshs.12,000/-.

2. The tenant filed a reference dated 8th December 2021 in opposition to the tenancy notice attaching an affidavit of even date stating that he bought the plot no. 3364, Kiengu Market from the late Jacob Mwambia who is the late husband of the landlord herein at a consideration of Kshs.750,000/-. In the month of May 2011, he deposes that he paid Kshs.3500/- on 1st May 2011, he further paid Kshs.123,000/- to Jacob Mwambia on 17th February 2016, he paid Kshs.404,000/- to John Kaberia, on 20th June 2016, he also paid Kshs.162,000/- to Glory Kanyiru (Landlord) and also spent Kshs.32,290/- to build a bathroom.

3. As such, the tenant deposes that the landlord has no claim over the business premises as she was a witness to the transaction and that the same was not under any lease.

4. The reference had been dismissed on 16th December 2021 for want of attendance on the part of the tenant but it was on 17th March 2022 reinstated on his application. Both parties filed their witnesses statements and documents in support of their respective cases as follows:-(i)Tenant’s statement dated 4th November 2021. (ii)Document dated 1st May 2011 being the purported sale agreement in long hand and a typed version thereof.(iii)Kenya Police form 20 dated 4th July 2012. (iv)Official receipt of Kshs.1000/- dated 4th July 2012 being payment for the certificate of good conduct.(v)Copy of the tenant’s identity card.(vi)Photographs of the premises.(vii)Notice dated 22nd December 2016 by Lydia Jacob Mwambia.(viii)Certificate of good conduct dated 12th July 2012.

5. On the other hand, the landlord filed the following documents:-(i)Witness statement of the landlord dated 4th April 2022. (ii)Witness statement of Charles N’toruru Mukira dated 4th April 2022. (iii)List of documents dated 4th April 2022 and list of witnesses.

6. The matter proceeded by way of viva voce evidence with the landlord starting. She adopted her witness statement and produced the documents listed in the document dated 4th April 2022 being the notice to terminate, official search dated 14th December 2021 for Title no. Antubetwe/Njoune/3364, Demand letter dated 30th September 2021, Grant of letters of administration issued on 4th August 2021 in favour of Lydiah Karima, Glory Kanyiru M’Imaria & Regina Mukiri Mwambia in Maua CMC Succession Cause No. 82 of 2020.

7. According to the landlord, the tenant paid rent until July 2021 when he refused to do so. He initially said that he had no money and later told the landlord to take whatever action she desired. The landlord issued a demand letter which was responded to vide a letter dated 5th October 2021 wherein the tenant claimed that the landlord was not a wife of the late Jacob Mwambia. As a result, the landlord issued the impugned notice to terminate tenancy for non- payment of rent.

8. It is at that point while challenging the tenancy notice that the tenant produced the purported sale agreement of 1st May 2011. She denied having been party to the agreement. She testified that John Kaberia is her late husband’s brother who is also deceased.

9. The Landlord confirmed that she received Kshs.162,000/- as rent from the tenant for a period of 4 years 5 months. She stated that the sale agreement is fraudulent and that she was not a witness in it. The landlord stated that the claim for purchase of the property should be taken to the Environment and Land Court.

10. She testified that the plot has 2 doors one of which belongs to her co-wife who has leased it to another person. She collects rent therefrom. The co-wife is one Lydia Karima who was present in court.

11. In cross-examination, the landlord confirmed that she had letters of administration in respect of the estate of late Jacob Mwambia. She confirmed that John Kaberia was collecting rent on her behalf prior to his death.

12. Upon cross examination by the court, the tenant confirmed that he had not claimed any beneficial interest over the suit plot and had not filed any other case to prove his interest over the suit plot.

13. The landlord’s witness was Charles N’toruru Mukira who is a brother of the late Jacob Mwambia who was younger than him. John Kaberia (deceased) was also his brother. He confirmed that both Lydia and Gloria (landlord) were wives of Jacob Mwambia (deceased).

14. Upon death of Jacob Mwambia, the witness testified that the suit plot was being managed by John Kaberia as he came from the same house. Upon death of the latter, the family sat down and agreed that the witness goes to the plot and make arrangements on how rent would be paid henceforth. Gloria and Lydia were to collect rent with each being entitled to one door. The tenant fell on the side of Gloria and started paying rent. The witness said that he was not aware of any sale of the plot. The tenant did not raise any objection on payment of rent. A question had been asked during the burial of Jacob Mwambia for any person who had a claim over his estate to come forward and none did.

15. After close of the landlord’s case, the tenant testified and relied on his witness statement and documents filed in the matter. He stated that he initially intended to lease the suit plot from Jacob Mwambia. He was shown the plot at Kiengu Market and paid Kshs.3,500/- to Jacob Mwambia.

16. When he visited the plot on 1/5/2011 in the company of late Jacob Mwambia and John Kaberia, it turned out that he did not like the plot on account of its state and wanted his Kshs.3,500/- back. However, the tenant stated that the two implored upon him to buy the plot at Kshs.750,000/- payable in 10 years. An agreement was drafted on the same day.

17. After collecting the purchase price for 3 years, Jacob passed away and Kaberia replaced him. By then a sum of Kshs.123,000/- had been paid. He also collected money for three years and passed on. When the tenant went for the burial of John Kaberia, he approached his father who said that he would send Charles N’toruru and warned him not to disclose about the sale agreement until the 10 years payment period was complete. The 10 years ended in June 2021 by when he had paid the sum of Kshs.750,000/-. He constructed a toilet at Kshs.32,290/- during the period. Kaberia had taken Kshs.434,000/- before he died.

18. The tenant stated in cross-examination that the premises was closed and that no business was going on there. He stated that he has never done any business in the premises. He produced the hand written sale agreement of 1/5/2011 and a typed version. It is said to have been typed in 2011. All entries are typed and the tenant stated that this was done in 2011.

19. Despite not knowing Gloria (landlord) in 2011, her name is in the sale agreement though. He confirmed having attended the burials of Jacob Mwambia and John Kaberia but was not given a chance to put across his claim. He said that he did not know if Jacob had a wife.

20. He confirmed that he never objected when Charles N’toruru directed him to be paying rent to the widow of Jacob by the name of Gloria. He stated that he collects rent from one room and not the other one since he had not made arrangements for collecting rent.

21. He stated that he had not taken any step to have the suit plot transferred to him. The agreement was subject matter of criminal investigations by the DCI Maua.

22. I am now required to determine whether there exists a landlord/tenant relationship between the parties herein and if so whether the tenancy notice served upon the tenant is valid or not. Finally, I shall determine who is liable to pay costs of the reference.

23. The landlord maintains that the tenant went into possession of the suit premises as a rent paying tenant of her late husband. Upon his death, the tenant paid rent for the suit premises through his brother one John Kaberia until his death. The said John Kaberia would share the rent between her and her co-wife one Lydia Karimi. When John Kaberia passed on, a family meeting was held and Charles N’toruru went to the plot and introduced the two widows of Jacob Mwambia who continued to collect rent until about June 2021 when the tenant herein stopped paying rent and upon being served with the termination notice, he flashed out the purported sale agreement of 1st May 2011.

24. I have looked at the purported agreement and I am not satisfied that it passes the test set out in section 3(3) of the Law of Contract Act, Cap. 23 Laws of Kenya. I however agree with the landlord that the tenant ought to file a claim of ownership of the suit plot in the Environment and Land Court against the legal representatives of the estate of Jacob Mwambia. Such an issue cannot be determined in this reference.

25. It is clear from the certificate of official search that the suit property is in the name of Jacob Mwambia Mukira (deceased) having been registered as such on 30th September 2010. The tenant has not exhibited any instrument of transfer nor consent of the land control board to corroborate the purported ownership of the property. He had previously paid rent to the landlord until June 2021. He never raised any objection or claim after death of Jacob Mwambia or during the succession proceedings in respect of his estate. He has not even filed any suit in the Environment and Land Court. I therefore find and hold that the tenant is not the owner of the suit premises and that being so, the landlord has been able to demonstrate that there exists a controlled tenancy over the suit premises between the two parties herein.

26. As regards the tenancy notice, the tenant has confirmed that he has not paid rent from July 2021 when he claims he became the owner after expiry of Ten (10) years from the date of the agreement. Section 7 (b) of Cap. 301 provides one of the grounds for termination of tenancy to be a tenant’s default to pay rent for a period of two months after such rent has become due or payable or has persistently delayed in paying rent which has become due or payable.

27. I have already held that the tenant’s claim of ownership of the suit premises is questionable and remains unproved. He confirmed that he does not collect rent from the room assigned to Lydia Karimi. On what basis would he fail to pay rent for the room in his possession?. I find and hold that the tenancy notice has been proved to the required standard.

28. On the issue of costs, the same are always in the court’s discretion but always follow the event unless for good reasons otherwise ordered. I have no good reasons to deny the landlord costs.

29. The upshot of my foregoing analysis is that the reference herein has no merit and is a candidate for dismissal. In conclusion therefore, the final orders that commend to me are:-(i) The tenant’s reference dated 8th December 2021 is hereby dismissed with costs.(ii) The landlord’s notice to terminate tenancy dated 28th October 2021 is valid and the tenant’s occupation of plot no. 3364, Kiengu market is hereby terminated.(iii) The tenant shall forthwith deliver vacant possession of the suit premises with immediate effect and in default shall be evicted therefrom by a licensed Auctioneer who shall be granted security by the OCS of the Police Station within whose jurisdiction the suit premises is situate.(iv) The tenant shall pay all the rent in arrears from July 2021 until he vacates or is evicted therefrom.(v) The tenant shall pay costs of Kshs.20,000/- to the Landlord.It is so ordered.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 26TH DAY OF JULY 2022. *HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Kamau for the Landlord/RespondentNo appearance for the Tenant