[2024] KEBPRT 191 (KLR)

Kimani v Nginyo (Tribunal Case E527 of 2023) [2024] KEBPRT 191 (KLR) (15 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 191 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E527 of 2023

Cyprian Mugambi Nguthari, Chair

February 15, 2024

Between

Francis Kimani

Applicant

and

Samson Nginyo

Respondent

Ruling

1. The landlord’s notice to terminate tenancy is the one dated 5. 4.2023 and is brought on the grounds that;-“the landlord intends to carry out substantial work of construction that is renovation and cannot do so without obtaining vacant possession of such premises.”

2. The effective date for the notice is indicated to be 1. 7.2023

3. The tenant, while objecting to the notice to terminate his tenancy filed a reference to the Tribunal under Section 6 of Cap 301 and thereafter this matter produced for hearing on 2. 11. 2023.

The landlord’s case 4. The evidence of Winnie Wamaitha Nginyo may be summarized as follows:-a.That she is the daughter of the landlord and the manager of the suit premises wherein the tenant occupies shop No. 1. b.That the reasons the landlord desires to terminate the tenancy is that the Ministry of Health has directed the landlord to renovate the premises. The notice is from the County Government of Kiambu and is dated 20. 3.2023. c.That the landlord has obtained the necessary permit to renovate by a letter dated 7. 6.2023. d.That the landlord is not targeting the tenant but is only seeking to renovate shop No. 1 as he cannot afford to renovate all the shops on the premises at the same time.e.That the tenant has been on the suit premises for over twenty years.f.That the suit premises have not been renovated for over twenty-five years and the premises have been condemned.g.That the agreed rent is Kshs. 5,000/= but the tenant has been paying Kshs. 4,500/= without any explanation, but the rent though is not the reason the tenant seeks to terminate tenancy.h.That the tenant is free to come back to the premises on mutually agreed terms once the renovations are complete.

5. Upon Cross Examination by the tenant, the witness’ responses may be sumamrised as follows;-a.That the demands in the letter of 20. 3.2023 from the County Government of Kiambu have been met.b.That the tenant’s roof is leaking.c.That the agreement for 1997 has since expired.d.That if indeed the tenant was taking care of the premises, the Ministry of Health would not have issued the demands it did.e.That the landlord has not paid the goodwill to the tenant because the tenant has not vacated the premises.f.That the tenant has always paid Kshs. 4,500/= instead of Kshs. 5,000/= carrying forward a monthly balance of Kshs. 500/=.

The Tenant’s case 6. The evidence of Francis Kimani Kamau, the tenant may be summarized as follows:-a.That the tenant has been renovating the premises and the same is not leaking.b.That the landlord is only interested in having the tenant removed from the premises.c.That all the units in the premises have a continuous roof and it is not possible to renovate only the tenant’s shop to the exclusion of the other tenants shop.d.That the tenant has not refused to pay rent.e.That the tenancy between the parties has not expired as the agreement was that the tenant who would next occupy the premises would pay the tenant herein the goodwill.f.That the notice from the Kiambu County Government has not isolated the tenant’s shop for renovation and if there is any renovations it must target all the other shops.

7. Upon Cross Examination by Counsel for the landlord, the tenant’s responses may be summarized as follows;-a.That though the lease document provides for the monthly rent of Kshs. 5,000/=, the tenant has been paying Kshs. 4,500/= and to which the landlord had agreed though the tenant stated that he does not have that agreement.b.That the tenant has no evidence before the court to prove that he had carried out any renovations.c.That the lease agreement required the tenant to be responsible for painting and other undertakings required by the health department.d.That the tenant has not challenged the notice dated 20. 3.2023. e.That the goodwill paid was Kshs. 20,000/= but would be varied to a higher sum as per the agreement.

8. Both parties have filed their written submissions. I have read the same and I will consider them in this ruling.

Analysis and determination 9. The only issue that arises for determination in this suit is whether the landlord has established by way of evidence the grounds of termination of tenancy specifically set out in his notice.

10. Before I proceed to interrogate the bonafides or lack thereof of the notice, I do note that the tenant has contended in his submissions that he was not served with the notice to terminate his tenancy. I do agree with the landlord’s submissions that this contestation is irrelevant for the reasons that the tenant has already filed a reference to the said notice and which has given rise to these proceedings. That particular protestation has therefore been overtaken by events and nothing turns on it.

11. The landlord’s notice to terminate tenancy is based on the statutory notice issued by the Directorate of Public Health and Sanitation, County Government of Kiambu, dated 20. 3.2023, hereinafter referred to as the County Notice.

12. The County notice stated that a sanitary inspection carried out on the suit premises revealed that there existed conditions liable to be injurious to health contrary to the provisions of the Public Health Act. The notice therefore required the landlord to undertake the following works within a period of twenty-one days;a.Fill in and/or cover the dangerous open collapsed pit latrine.b.Provide adequate sanitary facilities with tiled floors and walls to ease cleaning.c.Install flashing units in all water closets.d.Scrub and remove stains from the water closet pans.e.Provide separate shower rooms.f.Install adequate running water within the premises.g.Empty the transfer station and provide air tight covers.h.Relay all the floors within the premises.i.Repaint the entire premises.j.Replace the missing and rotten facial boardsk.Repair the leaking roofs especially the hardware and improve ventilation.l.Repair the open drainage and provide gratings.

13. The notice further provided that failure to comply with the demands therein would lead to legal proceedings against the landlord.

14. The renovations letter of authority dated 7. 6.2023 refers to the landlord’s application dated 7. 6.2023 and authorizes the landlord to carry out the following repairs, as ticked in the said application;a.Painting worksb.Windows and door repairsc.Filling grillsd.TillingThe letter of authority, though addressed to the landlord has not indicated what the L.R. and plot No. in question are. On the other hand, the county notice is clear that it is in reference to plot No. 412 Ndumberi.

15. The question that arises in regard to the above notices and from the notice to terminate tenancy is whether the renovations that the landlord intends to carry out are necessary and secondly, so substantial a work of construction that the landlord cannot carry out the said works without obtaining vacant possession of the premises.

16. I have gone through the list of the repairs required by the Directorate of Public Health as I have listed them down in paragraph 12 above. I do not think those renovations/repairs are so massive and substantial as to require vacant possession of the premises and the drastic measure of terminating the tenants’ tenancy.

17. Further, the only repairs authorized by the letter of authority dated 7. 6.2023 from the County Government of Kiambu, Lands, Housing & Physical Planning Sectors only authorizes the landlord to carry out painting works, windows and door repairs, filling grills and tiling. I find the letter of authority to be inadequate to have it pinned on the tenant herein as it does not specifically refer to any plot or the tenants particular shop. Even if it had those missing details, the repairs authorized to be carried out are not so massive and/or substantial to require the tenant to render vacant possession of the premises.

18. In my view, the most important ingredient to be satisfied in terminating a tenancy under Section 7(1)(f) is that the landlord cannot reasonably carry out the repairs without obtaining possession of such premises. In this regard, the High court in the case of; Auto Engineering Ltd vs M. Gonella & Co. Ltd [1978] eKLR stated as follows:-“…First, it is correct that the wording of Section 7(1)(f) is “demolish or reconstruct” and not merely to effect repairs. The distinction can of course be important; for while mere repairs may not necessarily mean that the landlord needs possession of the premises an intended demolition or reconstruction of a substantial part of the premises would in all probability be frustrated if the landlord could not obtain possession and that is why this provision exists.”The court further stated:“For this purpose the court must be satisfied that the intention to reconstruct is genuine and not colourable, that it is a firm and settled intention, not likely to be changed, that the reconstruction is of a substantial part of the premises, indeed so substantial that it cannot be thought to be a device to get possession, that the work is so extensive that it is necessary to get possession of the holding in order to do it, and that it is intended to do the work at once and not after a time. Unless the court were to insist strictly on these requirements tenants might be deprived of the protection which Parliament intended them to have. It must be remembered that if the landlord having gotten possession honestly changes his mind and does not do any work of reconstruction, the tenant has no remedy. Hence, the necessity for a firm and settled intention. It must also be remembered that the Act is intended for the protection of shop keepers and that this protection would be nullified if a big concern could buy the property and get possession by putting in, say, a new shop front. Hence, the necessity for the work being substantial.”

19. It is my finding in the circumstances of this case that, the repairs sought to be undertaken by the landlord are not substantial and extensive as to require the tenant to render vacant possession of the premises.

Disposition 20. Consequently, I do not find any merits in the landlord’s notice to terminate tenancy dated 5. 4.2023 and I hereby order that the notice shall be of no effect.

21. The landlord will bear the costs of the suit.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF FEBRUARY 2024HON. CYPRIAN MUGAMBICHAIRPERSON02. 2024Ruling delivered in the absence of the parties.