[2021] KEBPRT 358 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 109 OF 2016 (NYERI)

LAWRENCE NDIRANGU MUHIRI..........................APPLICANT/APPLICANT

VERSUS

JOHNSON GITHUA GACHERE & 5 OTHERS..RESPONDENT/LANDLORD

JUDGEMENT

1. By a notice of motion dated 20th February 2017, the Tenant in material part applied that the order made herein on 13th February 2017 be varied or rescinded and that the Respondents be restrained from evicting the Applicant until his application was heard and determined.

2. This Tribunal gave interim orders on 20th February 2017 in terms of prayers 3 & 4 of the application.

3. The application is supported by the affidavit of the Applicant of even date in which he states that as the person who filed the Reference, he was very much interested in having the matter heard.

4. He further states that he had nothing to fear as the Respondents had no mandate to issue the notice dated 29/8/2016.

5. The Tenant deposes that he did not receive the hearing notice informing him that the matter would be heard on 13th February 2017.

6. He deposes that he had paid rent as required by regulations made at every annual general meeting when the rent for every year is paid and shared by partners according to shares owned.

7. Through a replying affidavit sworn by John Githua Gachere on 17th July 2017, the said application is opposed.

8. It is the Respondent’s case that the Applicant is feigning ignorance of the matters herein to enable him continue occupying 5 rooms of the premises without paying rent.

9. It is deposed that the Applicant was served but chose to ignore the Tribunal in order to prolong his stay in the premises.

10. The deponent denies that he had no mandate to sign the termination notice and has produced a search showing who are the owners of the premises and has pointed out that the Applicant is not in the list.

11. According to the Respondents, the Applicant is in rent arrears of over Kshs.456,657/- which he should deposit in the Tribunal as a show of good faith or demonstrate how he has paid rent.

12. It is deposed that the mere fact that the Applicant’s mother was part owner of the property does not support his position that he is a tenant paying a monthly rent of Kshs.6000/- which was massively in arrears.

13. The amount owing by the Tenant is causing undue suffering to the families of the owners of the premises according to the Respondent.

14. On 22nd September 2017, this tribunal ordered the Tenant with effect from 1st October 2017 to pay the monthly rent of Kshs.5000/- to the partnership account on without prejudice basis.

15. On 22nd May 2018, the Tribunal ordered both the Landlord and the Tenant to prepare a statement of rent account within 30 days ahead of the hearing.

16. On 19th June 2018, the Landlord filed their statement of account showing that the Tenant was in a arrears of Kshs.503,737/- as at that date having credited all the payments made in cash and dividends by him.

17. The Tenant on the other hand filed his rent account statement for the period January 2010 to January 2018 indicating that he had paid rent of Kshs.60,000/- every year and had no outstanding balances.

18. According to the document filed by the Tenant, he occupies a butchery and catering unit in plot no. 5, Kiahungu paying a rent of Kshs.5,000/- per month as per agreement between him and the partners.

19. This matter proceeded before Hon. Mbichi Mboroki (then Chairman) by way of viva voce evidence on 25th March 2019 when the Tenant testified as well as the Landlord’s witness one Johnson Githua Gachere.

20. This Judgment is therefore written pursuant to order 18 Rule 8 of the Civil Procedure Rules which gives me power to deal with evidence taken before another judicial officer/Judge. The term Judge being defined in section 2 of the Civil Procedure Act to mean the presiding officer of a court.

21. According to the Tenant/Applicant, his mother one Gladys Wakarindi (deceased) was a partner in the suit plot where he is a tenant.

22. The monthly rent is Kshs. 5000/- and he became a tenant in 2002. He stated that he has been paying rent through dividends and that his share of such dividends was being deducted and offset against rent whereupon he would pay the balance.

23. In 2003, the share of dividend was Kshs.30,000/- and he therefore paid Kshs.18,000/- for the balance in 2007. He stated that the sum of Kshs.18000/- was paid in cash.

24. According to the Tenant, Johnson Githua Gachera (landlord’s witness) was the one doing reconciliation of books and that this is what was the practice in 2007, 2008, 2009 and 2010.

25. In 2010, the Tenant testified that he was awarded costs of Kshs.5000/- in a case filed in this Tribunal by the said Johnson Githua Gachera which was dismissed.

26. In the same year, his rent was increased to Kshs.5000/- and his dividend increased to Kshs.45,000/- and that he was paying the balance in cash. He therefore maintained that he had no rent arrears.

27. The Tenant stated that the Landlord had not paid him any dividends from 2007. He therefore prays for setting aside of the orders of 13/2/2017.

28. In cross-examination the Tenant stated that he was paid Kshs.6,158/- as dividend, in 2011, he received Kshs.11,597/- and he signed.

29. In 2012, he received Kshs.21,667/- and in 2012, Kshs.13,456/-.

30. The Landlord’s witness testified that he served the Tenant with the notice to terminate tenancy and he filed a Reference in this Tribunal. He produced as exhibit 3 the order for vacant possession.

31. The witness denied that the Tenant paid at any one time Kshs.60,000/- or monthly rent. He was required to pay monthly rent. All payments made by the Tenant are captured in the statement.

32. In February 2021, the Tenant paid Kshs.30,000/- in cash and a similar amount in the year 2013. In 2014 he paid Kshs.6,300/-.

33. The witness produced the book in which the Tenant acknowledged receipt of payments as exhibit 4 and denied that the partnership has ever issued dividends of Kshs.30,000/-.

34. On being cross-examined by the Tribunal, the witness stated that there were no dividends paid for the years 2007, 2008, 2009 and 2010 by the partnership.

35. In 2011, the Tenant collected Kshs.11,597/- in cash towards dividends and the following amounts in the subsequent years, in 2012, Kshs.21,667/- 2013 Kshs.13,456/-, 2014 Kshs.6230/-, 2015 Kshs.6230/- which was channeled to his rent account and in 2016 the arrears was Kshs.8553/- but he did not release the money.

36. I am now required to determine the following issues:-

(a) Whether or not the application dated 20th February 2017 ought to be allowed.

(b) Whether the Tenant’s Reference ought to be allowed against the notice to terminate tenancy dated 29th August 2016.

(c) Whether the Tenant is in rent arrears and if so how much?.

(d) Who is liable to pay costs of the Reference?

37. The order being challenged by the Tenant was in the following terms:-

“1. The Tenant’s reference dated 19th October 2016 of (sic) dismissed.

2. Landlord notice dated 29th August 2016 is allowed.

3. The Tenant shall vacate and deliver vacant possession of the suit premises on or before 1st March 2017 in default an eviction order shall issue.

4. The Landlord is allowed to levy distress and recover arrears of rent of Kshs.456,657/-.

5. Tenant shall pay the Landlord the costs of the reference assessed at Kshs.10,000/-.

5. The O.C.S Mukurweini Police Station to enforce compliance”.

38. I have checked the court record and I am unable to find the proceedings of 13th February 2017 pursuant to which the impugned order was issued. It is not clear if the current file is a skeleton one or what became of those proceedings.

39. Suffice to say that by reopening the proceedings for oral hearing after the said order, the former Chairman must have intended to hear the Reference on merits.

40. I will therefore proceed on the assumption that the orders of 13th February 2017, were vacated and determine the Reference on the merits.

41. I therefore answer the first issue in the affirmative ad formally set aside the order of 13th February 2017 in exercise of my discretion under Section 12 (1) (i) which gives this Tribunal power to vary or rescind any order made by it under the provisions of Cap. 301, Laws of Kenya.

42. In regard to the second issue, I have perused the notice to terminate tenancy dated 29th August 2016 and note that it is signed by at least six (6) partners of the Landlord herein.

43. The reason for termination of tenancy cited therein is that the tenant has defaulted in rent for 10 years in the sum of Kshs.456,657/- and that the Landlord would like to get another tenant who pays tent in time.

44. I need to evaluate the rent payment record of the tenant for the relevant period between 2007 and 2016 when the notice was issued in order to determine whether the notice is genuine or not.

45. According to the tenant, between 2010 and 2016, he had no rent arrears as he always paid rent in the sum of Kshs.60,000/- through dividends payable towards his mother’s shareholding in the Landlord partnership and the top ups made in cash by him.

46. According to the Landlord between 2007 and 2009, the rent payable for the demised premises was Kshs.48,000/- per annum @ Kshs.4000/- per month and from 2010 to date Kshs.60,000/- @ Kshs.5000/- per month.

47. The record produced by the Tenant shows that no rent balance is due to the Landlord but does not indicate when the alleged payments of Kshs.60,000/- for each year were made.

48. On the contrary, the landlord’s record shows that for the entire period between 2007 and May 2018, the Tenant intermittently paid rent and had an outstanding balance of Kshs.503,737/-.

49. All the payments and debits made against the rent account are shown in the Landlord’s statement including the dates when the same were made.

50. In his testimony, the Tenant did not question the said accounts and did not state that he made any payments that are not reflected therein.

51. The dividends book was produced to show the amounts paid to the Tenant by the partnership as dividends and this controverted his allegation that all rent was paid through dividends and top ups.

52. The Tenant’s record does not show how much was paid as dividends and how much was paid as top ups. It just states that for each year the Tenant paid Kshs.60,000/- from 2010 to January 2018.

53. Nothing was said by the Tenant in respect of the years 2007 to 2009 which were also in issue.

54. I have therefore considered the statements of rent account presented by both the Landlord and the Tenant and I am convinced beyond any iota of doubt that the Landlord’s account reflect the correct position thereof.

55. I therefore hold that the Tenant was in arrears of Kshs.503,737/- as at May 2018 and the Landlord was justified to issue the notice to terminate tenancy under section 7(1) (b) of Cap. 301, Laws of Kenya.

56. I therefore proceed to uphold the notice of termination of tenancy.

57. In the premises, I will make the following final orders:-

(i) The Tenant’s Reference dated 19th October 2016 be and is hereby dismissed with costs.

(ii) The landlord’s notice to terminate tenancy dated 29th August 2016 is hereby upheld.

(iii) The Tenant shall vacate and deliver vacant possession of the suit premises on or before 1st October 2021 and in default, he shall be evicted therefrom by a licensed auctioneer commissioned by the Landlord.

(iv) The Landlord is allowed to levy distress and recover the arrears of rent in the sum of Kshs.503,737/- as at 31st May 2018 together with any other amount that has fallen due and payable upto the date of the Tenant’s eviction therefrom.

(v) The Tenant shall pay costs of the Landlord assessed at Kshs.50,000/- forthwith.

(iv) The O.C.S Mukurweini Police Station or any other Police station within whose jurisdiction the suit premises is located shall provide security and ensure compliance with these orders.

It is so ordered.

DATED, SIGNED & DELIVERED VIRTUALLY THIS 11TH DAY OF AUGUST 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Mr. Muhoho for the Landlord

N/A for Tenant