[2022] KEBPRT 7 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 311 OF 2021 (NAIROBI)

LEAH WAMAITHA NDUATI.....................................................................TENANT

VERSUS

HOVEN COMPANY LIMITED........................................................LANDLORD

RULING

1. Through a reference dated 7th April 2021, the tenant moved this Tribunal complaining that the landlord threatened to evict her from the business premises situate on L.R NO. Kikuyu/Kikuyu/9224/9 without due cause and proper reason.

2. The tenant simultaneously filed a motion of even date seeking restraining orders against the landlord from evicting, removing, distressing, entering into, remaining in or harassing or interfering with her peaceful entitlement and possession of the guest house situate on the aforesaid property.

3. The application is supported by the annexed affidavit of the tenant sworn on the same date and the grounds on the face thereof.

4. The relationship between the two parties commenced by a tenancy agreement dated 1st June 2012 wherein it was agreed to lease the suit property to be used as a guest house for a period of eight (8) years from 1st July 2020.

5. On 10th August 2020, the landlord issued notice to the tenant to the effect that her tenancy had expired on 1st June 2020 and her continued occupation was without consent or payment of rent. It gave her seven (7) days to vacate the premises failing which legal action would be taken including eviction therefrom.

6. The notice indicated that continued occupation of the premises would attract mesne profits as the same was unlawful. The landlord also demanded Kshs.599,690/- in rent/mesne profits arrears. The notice is marked ‘LWW3’.

7. According to the tenant, she has made improvements and repairs in the suit premises including sinking a borehole in the adjacent property to supply water with the consent of the landlord and was bound to lose Kshs.2 million if evicted.

8. The tenant moved to this Tribunal fearing eviction by the landlord. Prior thereto, the tenant had written a letter dated 13/8/2020 demanding withdrawal of the landlord’s aforesaid notice. The letter is marked ‘LMN4’.

9. Interim orders were issued in the matter on 12th April 2021 in favour of the Tenant.

10. The application is opposed through the replying affidavit of one John Kimani, a director of the landlord where it is deposed that the applicant is not the landlord’s tenant but a trespasser in the suit premises based on the grounds that the lease agreement dated 1st June 2012 expired on 1st July 2020.

11. The applicant was notified vide a letter dated 10th August 2020 to vacate with immediate effect and her continued occupation of the premises was without the landlord’s consent.

12. According to the landlord, the applicant has not paid any rent since expiry of the tenancy agreement on 1st July 2020 and the receipts annexed to her application relate to the period before expiry of the lease i.e April 2015, December 2018, February 2019, December 2019, January 2020, April 2020 and May 2020.

13. The landlord denies existence of any borehole within its premises neither is she liable for refund of alleged costs of Kshs.2 million for improvements, repairs and borehole sinking.

14. The applicant filed a supplementary affidavit sworn on 27th July 2021 wherein she admits that the tenancy was for 8 years commencing on 1st June 2012 to 1st July 2020. She however deposes that she has been a month to month tenant after expiry of the said tenancy agreement with the landlord’s consent.

15. The tenant deposes that she has been diligently paying rent on monthly basis from the time of expiry of the tenancy agreement with the last receipt having been issued on 30th July 2020 marked “LWN6”. The said receipt relates to rent for May 2020 in the sum of Kshs.35,000/-.

16. At paragraph 7 of the supplementary affidavit, the applicant narrates how she has been paying rent to the landlord on various dates through KCB account deposits marked ‘LWN7’. She deposes that she has no rent arrears.

17. The applicant filed yet another motion dated 4th November 2o21 seeking that the OCS, Kikuyu Police Station do assist in enforcement of the orders issued on 12th April 2021. She also sought for a declaration that the actions of the Respondent/landlord within the suit premises were in gross disobedience and contempt of the court order given on 12th April 2021 and should be punished by way of fine and or imprisonment for six months.

18. The application is supported by the affidavit of applicant sworn on 4th November 2021 and the grounds on the face thereof. Prayer 2 of the application was granted at the ex-parte stage on 5th November 2021.

19. On 15th November 2021, the landlord moved this Tribunal by a motion of even date seeking that the order granted on the 12th April 2021 be varied, reviewed and/or set aside.

20. The landlord further sought that the tenant do immediately pull down illegal structures she has erected on the landlord’s property including removal of waste and debris arising from demolition thereof.

21. It is further sought that a declaration be made that the tenant’s continued operation of business within the suit premises situate within a residential area is a violation of the neighbours’ right to enjoy their property, a clean and healthy environment as contemplated by Article 40 and 42(1) of the Constitution of Kenya 2010.

22. The landlord sought that the tenant/respondent, MS Leah Wamaitha Nduati do personally attend before the honourable Tribunal during the inter-parties hearing of the application for cross-examination to reveal the concealment of material facts outlined in Nungari Kimani’s supporting affidavit sworn on 15th November 2021.

23. Prayer 6 of the application seeks that the Tribunal order issued on 12th April 2021 be rescinded in its entirety as the same was obtained through misrepresentation and concealment of material facts.

24. Prayer 7 seeks for consolidation of the application with the landlord’s preliminary objection dated 9th June 2021.

25. Prayer 8 seeks for an order directing the tenant to forthwith deliver vacant possession of the suit premises being the residential house leased to the tenant by the landlord and in default of such vacant possession an order be made for the eviction of the tenant with the assistance of the OCS Kikuyu Police Station.

26. The application is supported by the affidavit of Nungari Kimani, a director of the landlord sworn on 15th November 2021 and the grounds set out on the face thereof.

27. The supporting affidavit reiterates the contents of the replying affidavit of John Kimani sworn herein on 12th July 2021.

28. It is deposed that the tenant was in rent arrears prior to expiry of the tenancy agreement and was still in arrears of Kshs.420,000/- to date. The tenant had failed to make good the said arrears despite demand to do so.

29. The landlord denies having attempted to evict the tenant but deposes that it was only giving her an opportunity to vacate the premises for failure to pay rent on which their occupation is premised.

30. It is the landlord’s case that the ex-parte orders were obtained fraudulently as the tenant did not disclose that she was in arrears for months and her continued occupation of the suit premises was disapproved.

31. According to the landlord, the suit premises was a residential house located in a residential area and not a business premises. It is deposed at paragraphs 18, 19 and 20 that the tenant was in breach of covenants set out in the tenancy agreement including use of firewood which is prohibited leading to environmental pollution among others.

32. She is also accused of altering, demolishing, maiming, renovating, destroying and defacing the suit property.

33. The tenant is accused of failure to pay utility bills and the water and electricity bills had accumulated to Kshs.15,500/- and 26. 119/- respectively as at 8th November 2021.

34. The tenant is further accused of selling alcohol contrary to the agreed initial user as a guest house, conference and meeting place and was playing music in a residential area throughout the night thereby causing annoyance, disturbance and endangering the comfort, repose, health or safety of neighbours who continue to incessantly complain to the landlord as per annexures marked ‘NK10 & 11’.

35. The landlord also filed a replying affidavit sworn by Nungari Kimani in opposition to the tenant’s application dated 5th November 2021 stating that this Tribunal has no jurisdiction under section 12 of Cap. 301 to entertain criminal proceedings. It reiterates the contents of the supporting affidavit sworn by her on 15th November 2021 analysed above.

36. On 17th December 2021, the tenant swore a replying affidavit in opposition to the landlord’s application dated 14th November 2021. She reiterates the depositions made in her supplementary affidavit sworn on 27th July 2021 filed herein and denies that the orders of 12th April 2021 were obtained through misrepresentation of facts.

37. The tenant reiterates that the landlord has been harassing her and interfering with her business despite paying rent into its account and deposes that it was not in rent arrears. She annexes a deposit slip of Kshs.70,000/- made on 1/11/2021 as evidence that she was up to date on rent payment.

38. The landlord filed a second supplementary affidavit sworn on 11th January 2022 by Nungari Kimani reiterating the contents of her supporting affidavit sworn on 15th November 2021.

39. The matter was directed to be canvassed by way of written submissions and both parties complied. I will consider the submissions together with the issues framed hereunder.

40. The issues for determination herein going by the pleadings are:-

(a) Whether there exists a landlord/tenant relationship between the parties herein.

(b) Whether the tenant is entitled to the reliefs prayed for in the applications dated 7th April 2021 and 4th November 2021.

(c) Whether the landlord is entitled to the reliefs prayed for in the application dated 15th November 2021.

(d) Who is liable to pay costs?.

41. The relationship between the parties herein commenced by a tenancy agreement dated 1st June 2012 wherein the applicant took possession of the suit premises for purposes of running a guest house for a period of eight (8) years. Clause 14 of the agreement provided for giving of one (1) month notice of termination by either party in writing therefore making it a controlled tenancy.

42. The tenancy run its full course and expired by effluxion of time on 1st July 2020. The applicant submits that she continued possession as a month to month tenant. However the Respondent disputes the said contention stating that she has been a trespasser thereon.

43. The applicant states that she continued to pay rent after expiry of the lease and annexed some rent payment receipts marked ‘LWN2’ to the supporting affidavit. I have looked at the said rent payment receipts and noted that they all relate to the period prior to expiry of the lease as contended by the landlord. As can be seen from the receipts dated 20th and 30th July 2020, the payments related to rent for May 2020.

44. According to the landlord, prior to expiry of the tenancy, the applicant was required to pay monthly rent of Kshs.70,000/- and had accumulated arrears of Kshs.420,000/-. The said amount was demanded vide its letter of 10th August 2020.

45. The tenancy relationship having run its course was not renewed by the parties. According to the tenant, no notice under section 4(2) of Cap. 301 was served by the landlord and that the demand letter by the landlord’s lawyers is not the notice contemplated under the Act as it failed to meet the requirements of section 4.

46. I have considered the question raised by the tenant on the requirement of notice under section 4(2) of Cap. 301 and I am of the firm view that no such notice was required to be issued in this case. The tenancy arrangement was for eight (8) years and the same run its full course. The tenant knew that after the eighth year, she was required to vacate the suit premises or renew the tenancy with mutual agreement of the landlord. There having been no renewal, the continued occupation of the premises by the tenant amounts to trespass to property which cannot be countenanced by a court of equity or law.

47. I am fortified in this regard by the court of appeal decision in Kasturi Limited – vs- Nyeri Wholesallers Limited (2014) eKLR where it was held at paragraph 15 as follows:-

“On the counter-claim for vacant possession of the premises, we cite with concurrence the dicta by Lord Halisbury in Jacob – vs- Booths Distillery Co. 85 LTD at 262 where he stated that “there are some things too plain for argument”. In the present case, it is plain that the tenancy agreement between the parties expired on 14th April 2009, and has never been renewed. It is also plain that the appellant received a notice for non-renewal of the tenancy. We concur with the learned Judge that the appellant has no triable issue in the counter-claim for vacant possession. It is the duty of the courts to ensure that no individual is prevented from taking possession and or enjoying their property. A tenant cannot impose or force him/herself/itself on a landlord. In the instant case, when the lease between the parties expired, it was incumbent upon the appellant to give vacant possession. The Respondent legitimately exercised its right to seek summary judgment and an order for vacant possession and or forcible eviction of the appellant. We have no doubt that in entering summary judgment against the appellant, the learned judge acted properly and cannot be faulted”.

48. In the instant case, the landlord/Respondent has applied for an order of vacant possession and guided by the foregoing decision, the said relief ought to be granted.

49. As regards payments made by the tenant after filing this case, it is my considered view that the landlord/Respondent is perfectly entitled to claim mesne profits equivalent to monthly rent from the applicant notwithstanding expiry of the lease/tenancy agreement. It is also entitled to recover any arrears of rent that had accrued prior to expiry of the lease.

50. In that regard I am guided by the decision in the case of Fredrick Korir –vs- Soin United Women Group (2018) eKLR where at paragraph 25 the court cited the provisions of section 2 of the Civil Procedure Act where mesne profits is defined as follows:-

“Mesne profits” in relation to property, means profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom together with interest on such profits but does not include profits due to improvements made by the person in wrongful possession”.

51. Citing the Black’s Law Dictionary at paragraph 28, the court went on to hold as follows:-

“mesne profits are awarded in place of rents, where the tenant remains in possession after the tenancy agreement has run out or have been duly determined. A landlord claiming mesne profits is claiming for the profits intermediate from the date the tenant ought to have given up possession and the date he actually gives up possession.

After the service of a written notice or at the end of the term granted and the tenant hold over without the permission of the landlord, the tenant is liable to pay mesne profits from the use and occupation of the premises till he delivers up possession”.

52. In the premises, the amount paid into the landlord’s account by the tenant constitutes mesne profits and cannot be taken to be rent within the meaning and intendment of Cap. 301, Laws of Kenya.

53. In the premises, it is my considered view that the tenant/applicant is not entitled to be protected by way of injunction and the interim orders issued herein could not have been granted had all the foregoing facts been known to the Tribunal.

54. As regards the Tribunal’s jurisdiction to grant an order of injunction, I agree with the tenant/applicant that it has jurisdiction to do so. In this regard, I rely on the High Court decision in Republic vs Business Premises Rent Tribunal & Another ex-parte Albert Kigera Karume (2015) eKLR where it was held at paragraph 40 as follows:

“ It is therefore clear that the jurisdiction of the subordinate courts can be limited by an Act of Parliament. To that extent it is incorrect as contended by the interested party that the Tribunal necessarily has the same powers as the Magistrate’s court. However where the powers of the Tribunal has not been limited by a statute, it is my view that there is nothing to prevent the Tribunal from exercising the powers conferred on the subordinate courts such as the magistrate’s court”.

55. At paragraph 43, the court went on to hold:-

“It is therefore my view and I so hold that until parliament enacts legislation limiting or restricting the powers of the Tribunal it has the powers to grant orders prescribed under section 63(c ) of the Civil Procedure Act including orders of temporary injunction”.

56. In regard to this Tribunal’s power to punish for contempt of court, I find and hold that the Tribunal has no jurisdiction in view of section 12 (2) of the Landlord and Tenant (shops, Hotels and Catering Establishments) Act Cap. 301 which provides:-

“ A Tribunal shall not have or exercise any jurisdiction in any criminal matter or entertain any criminal proceedings for any offence whether under this Act or otherwise”.

57. It is trite Law that contempt of court proceedings are quasi- criminal in nature and the invitation by the tenant to punish the landlord for flouting the orders of 12th April 2021 is clearly an affront to section 12(2) of Cap. 301. I refuse the said invitation.

58. In that regard, I am guided by the decision in the case of Aloise Chweya Obaga – vs- Ouru Power Limited & 2 Others (2017) eKLR where at paragraph 17 it was held thus:-

“Therefore, the law that governs contempt of court proceedings is the English law applicable in England at the time the alleged contempt is committed. Section 5 of the judicature Act imposes a duty on the High Court, the court of appeal and law practitioners to ascertain the applicable law of contempt in the High Court of justice in England at the time the application is brought”.

59. Section 5(1) of the judicature Act provides as follows:-

“The High Court and the court of appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High court of justice in England and that power shall extend to upholding the authority and dignity of subordinate courts”.

60. Local Tribunals such as this Tribunal are classified under Article 169 (1) (d) of the constitution of Kenya, 2010 as subordinate courts. No power is donated to the subordinate courts under the judicature Act to punish for contempt of court. As such the tenant’s application is misconceived and bad in law.

61. I have considered the landlord’s application for review and/or to set aside. I note that the said application is founded upon various breaches of the tenancy agreement set out in the affidavit in support. In view of my holding that the tenancy relationship between the parties expired and was not renewed, the activities of the tenant in the suit premises constitute trespass upon property which is actionable parse. I need not therefore interrogate the truthfulness or otherwise thereof for purposes of exercising my powers under section 12 (1) (i) of Cap. 301, Laws of Kenya.

62. In the premises it is my considered finding that the tenant is wrongly in possession of the suit premises and I am entitled to make orders of vacant possession under section 12 (1) (e) of Cap. 301.

63. I note that the tenant’s reference relates to the same issues canvassed in the application dated 7th April 2021 and having considered the contents of all the affidavits and documents filed in exercise of powers bestowed on me under section 12 (4) of Cap. 301, there is no compelling reason why I should subject the matter to full hearing.

64. The letter dated 10th August 2020 is not a notice under section 4 (2) of Cap. 301, Laws of Kenya and it is my finding that the tenancy relationship between the parties having come to an end by effluxion of time did not require any notice to terminate under the said Act.

65. This Tribunal cannot make a new contract for the parties to extend the period for the tenancy as my duty is to enforce what they agreed upon. In this regard, I wish to adopt what was stated in the case of Jiwaji and Others – vs- Jiwaji & Another(1968) EA 547 at page 554.

“It is urged that the parties obviously contemplated that the last payment would be made about 10 ½ years from the date of the agreement and that either the agreement should be construed or that there should be an implied term to give effect to this intention. I accept that the parties probably contemplated that the total sum would be paid off earlier than will probably be the position. But where there is no ambiguity in an agreement, it must be construed according to the clear words actually used by the parties, and it would be quite wrong to adopt a different construction or to imply a term to the contrary effect. As Lord Halsbury, L.C said in Smith vs. Cooke (1891) AC at Page 299,

“ I must say I for one have always protested against endeavoring to construe an instrument contrary to what the parties would have intended when they began to frame their instrument”.

………………I think I am not entitled to put into an instrument something which I do not find there in order to satisfy an intention which is only reasonable if I presume what their intentions were. I must find out their intentions by the instrument they have executed and if I cannot find suggested intention by the terms, I must presume that their intention were only as their deed disclosed”.

66. I therefore find and hold that the intention of the two parties herein was to create a landlord/tenant relationship for a period of eight (8) years and no more. I cannot extend that period by means of judicial fiat or otherwise since I would be going against their expressed intentions.

67. In the premises, the following final orders commend to me:-

(i) The tenant’s application and reference dated 7th April 2021 is hereby dismissed with costs to the Respondent/Landlord.

(ii) The Tenant’s application dated 4th November 2021 is hereby dismissed with costs to the landlord for want of jurisdiction.

(iii) The landlord’s application dated 15th November 2021 is allowed in terms of prayers 2,3,6 and 8 with costs.

(iv) The landlord’s preliminary objection dated 9th June 2021 is dismissed with costs to the Tenant.

(v) The landlord shall be at liberty to engage a licensed Auctioneer to evict or deliver vacant possession of the suit property being L.R. No. Kikuyu/Kikuyu/9224/9 forthwith should the Tenant fail to vacate therefrom voluntarily and the costs of the exercise shall be met by the Tenant.

(vi) The landlord’s costs shall be assessed in the normal manner by the tribunal.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF MARCH, 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Miss Mathangani for the Landlord

Bariki for the Tenant