[2022] KEBPRT 875 (KLR)

Machua v Mungai (Tribunal Case 851 of 2020) [2022] KEBPRT 875 (KLR) (Civ) (7 October 2022) (Ruling)

Neutral citation: [2022] KEBPRT 875 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 851 of 2020

Gakuhi Chege, Vice Chair

October 7, 2022

Between

Mary Wanjiku Machua

Tenant

and

Richard Muiruri Mungai

Landlord

Ruling

1. By a motion dated October 22, 2020, the tenant herein moved this Tribunal seeking for restraining orders against the landlord from interfering with her lawful enjoyment of the demised premises and from increasing rent from kshs 45,000/- to kshs 70,000/- without following the right procedure.

2. The application is supported by the tenant’s affidavit of even date wherein it is deposed that the landlord issued a verbal notice to increase rent from kshs 45,000/- to kshs 70,000/- and threatened to demolish the business premises and to evict the tenant making it impossible to conduct business.

3. It is deposed that the tenant has heavily invested in the suit premises and unless the Tribunal intervenes and restrains the landlord, she stood to suffer loss and damage.

4. According to the tenant, no lawful notice had been served upon her to warrant the increment of rent or her eviction from the suit premises.

5. The application is opposed through a replying affidavit of the landlord sworn on December 1, 2020 in which it is deposed that the parties entered into a tenancy agreement on November 6, 2017 by which the tenant agreed to let two houses on plot no 77 Kiserian at a monthly rent of kshs 42,000/-. The agreement is marked ‘RMM1’. Rent was negotiable every two years and was to increase to kshs 50,000/- as opposed to kshs 70,000/- as alleged by the tenant.

6. The tenant in disregard of the lease agreement constructed two semi permanent houses on the plot without the landlord’s knowledge and consent and sublet the same to other tenants who pay rent to her as per annexures “RMM2 (a), 2 (b), 2(c ) and 2(d)”. The said houses interfere with the business of another tenant who had complained to the landlord vide annexure ‘RMM3’ dated October 10, 2020.

7. The tenant was informed of the landlord’s intention to demolish the said semi permanent houses which were built in total disregard of the terms of the agreement and landlord’s consent.

8. According to the Landlord, the tenant did not stand to suffer loss of investment as the constructions done on the suit premises were erected without his consent and approval and she has been benefiting from the plot beyond measure at his expense.

9. The landlord deposes that the tenant was issued with a notice to terminate tenancy marked ‘RMM4’ after the final verbal notice to vacate the said plot.

10. According to the landlord, the tenant started disrespecting his opinion after he fell sick and was unable to visit the plot and even brought in two tenants who pay monthly rent of kshs 8000/- each to her. She deducted kshs 6000/- from the November 2020 rent which she allegedly paid for septic exhaustion services in the month of March 2020 without his consent or knowledge.

11. The landlord contends that the tenant has been exercising rights which she did not have over the demised premises. As a result, the landlord issued a demand letter for kshs 6000/- and demolition of the said semi permanent houses but the tenant ignored. The demand letter is marked ‘RMM5’.

12. The landlord therefore contends that the tenant has come to court with unclean hands for non- disclosure of material facts of the dispute. He seeks for protection of his rights as well by this Tribunal.

13. The tenant filed a further affidavit sworn on 21st January 2021 in answer to the issues raised in the replying affidavit. She admits having entered into the agreement marked as annexure ‘RMM-1’ at an agreed rent of kshs 19,000/- for one shop and paid three months’ rent deposit amounting to kshs 57,000/-.

14. Rent was reviewed in 2019 to kshs 25,000/-. The tenant bought another shop from Winnie Wamuyu Macharia which included a shade as per annexure ‘MWM-1. The rent for the second shop was negotiated at kshs 20,000/- as a result of which she paid three (3) months rent amounting to kshs 60,000/-. She has therefore been paying kshs 45,000/- for the two shops. A sum of kshs 3000/- is however offset against costs of installing a steel gate as evidenced by annexure ‘MWM-2’.

15. The tenant denies subletting the premises to one Robert Mwangi and deposes that the said person pays rent to the Respondent and the only premises she occupies is the one given by the landlord.

16. The tenant paid kshs 88,000/- via Mpesa as evidenced by annexure ‘MWM-4’ to the deceased landlord when he was unwell leading to amputation of his leg.

17. The tenant deposes that he helped the landlord in disposing septic effluent waste at a cost of kshs 18000/- when the latter was incapacitated. The Respondent refunded kshs 12,200/- via Mpesa and left a deficit of kshs 6000/- which was deducted from the November 2020 rent.

18. The tenant contends that the rent increment is illegal as the same had been increased after two years from kshs 19000/- to kshs 25,000/- and the other premises was not yet due for rent increment.

19. The tenant also filed a supplementary affidavit sworn on March 23, 2021 in opposition to the notice to terminate tenancy dated October 26, 2020. The notice is grounded on violation of the lease agreement by undertaking illegal construction and subletting without authority.

20. She denies subletting the suit premises or receiving rent from any of the tenants. She deposes that she introduced Robert Mwangi to the landlord and it was agreed that he pays kshs 100,000/- which the tenant paid on behalf of the said Robert Mwangi via Mpesa.

21. Robert Mwangi was informed by the tenant that the landlord had allowed him to construct on the premises which took close to two weeks to put up. The tenant denies receiving any rent from Robert Mwangi against whom a demand letter marked “MWM-1” dated February 19, 2021 was written.

22. The tenant avers that she has heavily invested in the business premises by putting steel doors, painted, tiled and grilled the premises to reinforce security among other major developments. The tenant deposes that she has spent in excess of kshs 700,000/- in that regard and paid kshs 60,000/- as liquor license fees to the County Government inter-alia.

23. The tenant further deposes in the alternative that if any construction was done, the same was with express authority of the respondent and that she had always treated the landlord with utmost respect and even paid part of his medical bills based on the cordial relationship.

24. According to the tenant, the notice to terminate his tenancy was an afterthought and did not specify which tenancy of the two shops was being terminated. She filed a reference vide NRB BPRT No 893 of 2020 to oppose it based on the grounds set out in the further affidavit as well as her supplementary affidavit filed herein.

25. The matter was directed to be disposed of by way of written submissions and both parties complied. The issues for determination herein are:-a.Whether the tenant is guilty of erecting structures on the suit premises and subletting to a third party and if not what orders should be made thereon?b.Whether the landlord’s notice to increase rent is lawful.c.Whether the landlord’s notice to terminate tenancy ought to be upheld or dismissed.d.Who is liable to pay costs?

26. On August 16, 2021, this Tribunal ordered a visit to the suit premises on plot no 77, Kiserian for purposes of establishing the presence of Robert Mwangi, the nature of his tenancy and ownership of the premises occupied by him as well as the person to whom he pays rent. The rent inspector was further to establish whether the premises occupied by Robert Mwangi affects any of the other tenants and if the construction is approved by the relevant County Government.

27. The inspection was done on October 2, 2021 and a report filed in the matter. it was established that Robert Mwangi occupies the premises and operates a bet-in shop. He did not enter into a tenancy agreement with either the landlord nor the tenant but was introduced by the tenant whereupon he was offered a space and erected a temporary structure.

28. The structures occupied by Robert were confirmed to belong to him as he was offered space to construct it. He admitted to have paid kshs 5000/- twice to the tenant for onward transmission to the landlord but halted payment after this case was filed in court. The premises is an extension from the tenants premises and do not affect other tenants as there was a path way in and out. It was however not approved by the County Government as it is temporary.

29. It is noteworthy that at the time of the inspection, Robert Mwangi was spoken to by the rent inspector on phone and both the landlord and tenant were present. Considering that the tenant claimed to have introduced Robert to the landlord and the fact that the structures erected on the premises are said to be owned by the said Robert, it is not possible for this Tribunal to find the tenant liable for the said construction.

30. According to the inspector’s report, Robert paid rent twice to the tenant for onward transmission to the landlord and when the instant dispute arose, he stopped payment of rent. The tenant has disowned him and claims that the said Robert paid kshs 100,000/- to the landlord to be allowed to put up the temporary structure on the suit plot. The Mpesa statement was not however exhibited by the tenant.

31. I agree with the tenant’s counsel’s submission that the respondent had a duty to prove that the tenant had authorized the constructions on the suit plot and the alleged subletting. This is what section 107 of the Evidence Act is all about. The tenant had no such burden.

32. In the premises, I am unable to find the tenant guilty of erecting the offending structures on the suit plot. I also have no evidence of sub-letting.

33. As regards notice to increase rent, none has been exhibited in this matter and I am unable to determine if indeed the landlord had intention to increase rent. The tenancy agreement exhibited only states that the parties were to negotiate “ on a new rent rate” after every two years.

34. In absence of any notice under section 4(2) of Cap 301, Laws of Kenya, I am unable to find any basis upon which I can decide on the alleged rent increment.

35. In regard to whether the landlord’s notice to terminate tenancy ought to be upheld or dismissed, the same is clearly based on violation of the lease agreement by undertaking illegal construction and subletting without consent. I have already held that there is no evidence that the constructions were done by the tenant or that Robert Mwangi was a subtenant of Mary Wanjiku Machua (tenant). In absence of such evidence, the ground cited by the landlord is not proved.

36. Under section 12(1) ( e) of Cap 301 Laws of Kenya, this Tribunal has jurisdiction to make orders for the recover of possession and for payment of arrears of rent and mesne profits which may be applicable to any person whether or not he is a tenant being at any material time in occupation of the premises comprised in a controlled tenancy.

37. In this matter, one Robert Mwangi is at the centre of the controversy between the tenant and landlord and despite being contacted by the Rent Inspector over this case, he has not come to court to explain the circumstances under which he went into possession of the suit premises. I am empowered under section 12(1) ( e) and 12(4) of Cap 301 to make any appropriate orders upon investigation of a complaint filed by either the tenant or landlord as this Tribunal deems fit. I shall order delivery of vacant possession and/or immediate eviction of Robert Mwangi from the suit plot. The illegal structure built on the suit premises shall be removed by a licensed Auctioneer who shall be accorded security by the OCS, Ngong police station or any other police station within whose jurisdiction the premises are situate.

38. Based on the letter marked ‘RMM5’ annexed to the replying affidavit of the landlord sworn on December 1, 2021 I find that the landlord is entitled to recover mesne profits of kshs 5000/- per month from the said Robert Mwangi who trespassed on the suit plot with effect from June 2020 until his eviction therefrom.

39. Costs are in the discretion of this Tribunal under section 12( 1) (k) of Cap 301 laws of Kenya but always follow the event unless for good reasons otherwise ordered. As neither the tenant nor the landlord has been found liable on the framed issues, I shall order each of them to meet own costs.

40. In conclusion therefore, I make the following orders in line with section 9)1) (a), 12(1) (e) & 12 (4) of Cap 301-.i.The tenant is not guilty of erecting structures on the premises or subletting the same to third parties.ii.There is no evidence of increment of rent under section 4(2) of Cap 301, laws of Kenya.iii.The tenancy notice dated October 26, 2020 served upon the tenant by the landlord is hereby dismissed.iv.The structures erected by Robert Mwangi and his occupation of the suit plot being plot no 77 Kiserian is illegal and an order for immediate vacant possession and/or eviction therefrom is hereby issued in respect thereof.v.The said eviction shall be conducted by a licensed Auctioneer who shall be accorded security by theOCS, Ngong police station or any other police station within whose jurisdiction the premises are situate.vi.The said Robert Mwangi is liable to pay mesne profits of kshs 5000/- per month with effect from June 2020 until the date of delivery of vacant possession or eviction therefrom.vii.Each party shall meet own costs of the suit.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALY THIS 7TH DAY OF OCTOBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of:Miss Oketch for the TenantNabayi holding brief for Miss Nduta for the Landlord.