[2024] KEBPRT 256 (KLR)

Madedo v Nzano (Tribunal Case E135 of 2023) [2024] KEBPRT 256 (KLR) (28 February 2024) (Judgment)

Neutral citation: [2024] KEBPRT 256 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E135 of 2023

N Wahome, Member

February 28, 2024

Between

Hunderson Kinyando Madedo

Landlord

and

Jared Chula Nzano

Tenant

Judgment

1. The landlord/Applicant commenced this suit by a reference dated 27/5/2023 said to be brought under Section 12(4) of the Landlord and Tenant (Shops, hotels and catering Establishments) Act (Cap. 301 hereinafter referred to as the Act. The complaint was that,“That the said JARED CHULA NZANO has rent arrears amounting to Kshs.140,000/- as from the month of August 2022 todate and has declined to vacate despite being issued with a notice and has continued to occupy the premises while doing his business yet the lease expired on 4/1/2023”.

2. This reference was pursuant to the notice of termination which was to the effect that:“you are in rent arrears from the month of April 2022 to December 2022 and the Tenancy Agreement is expiring on the 4/1/2023”.The notice of termination was dated 3/1/2023 but the same was expected to terminate on the 5/1/2023.

3. The reference was supported by a notice of motion application of even date brought under a certificate of urgency also dated 27/5/2023. The motion sought for the following reliefs,i.Spentii.That the Respondent/Tenant be ordered to vacate the premises known as Business premises erected at Voi Town on plot no. 1956/368 or in the alternative the Applicant be allowed to break into the premises and regain possession.iii.That the Applicant be allowed to levy distress of the property contained therein to recover rent arrears of Kshs.140,000/- or any other amount that shall have accrued at the date of the order.iv.That the Applicant be authorized by an order of the court to instruct an Auctioneer to recover rent arrears.v.That the costs of this application be borne by the respondent/tenant.

4. The landlord later filed his supplementary list of documents. The landlord did testify in court on the 18/1/2024 after the court was satisfied that the counsel for the Tenant M/S Ngetich Chira and Associates had been served with a notice of the hearing and an Affidavit of service filed in court. He testified and closed his case.

5. On his part the Tenant filed the replying affidavit sworn by himself on the 8/2/2024. Though the same was filed long after close of the pleadings and while the court had already retired to write its judgement, I have taken due regard and consideration of the same. Having looked at all the materials placed before me, I summarise the cases for the parties as follows:,

A. The case for the landlord 6. The landlords case was that:-i.That they had entered into a lease agreement with the Tenant dated 4/1/2021 pertaining to title No. Voi Town plot No.1956/368 for a term of two (2) years at the monthly rent of Kshs.14,000/- Annexure “HKM2”.ii.The respondent by an agreement of the same date, also agreed to settle the arrears of Kshs.146,000/- owed by a previous tenant named Dinah Kajala Mvoi and whereof he paid Kshs.50,000/- leaving a balance of Kshs.96,000/- which would be paid at Kshs.10,000/- monthly annexure “HKM3”.iii.The Tenancy lapsed on the 4th January 2023 and he had issued a termination notice to the Tenant dated 3/1/2023 to confirm that the tenancy would lapse effective the 5/1/2023 Annexure “KKN4”.iv.As at the time of filing the present suit, the Tenant was in rent arrears of Kshs.140,000/-. He attached receipts for payments made by the Tenant- Annexures “HKN5”.v.The rent arrears owed run from the month of August 2022 to the date of filing the suit. As at January, 2024 the rent arrears were Kshs.154,000/-.vi.That the tenant was paying rent well for the first 10 months at Kshs.14,000/- and a further Kshs.10,000/- to settle the arrears of the previous tenant until he started defaulting.

7. He therefore sought to be granted orders for the respondent to vacate the demised premises and for levy of distress for the recovery of Kshs.154,000/- accrued in rent arrears.

B. The case for the Tenant/Respondent. 8. On his part, the Respondent in his replying affidavit asserted that,i.He entered into the lease agreement dated 4/1/2021 and also into the further agreement dated to settle rent arrears owed by M/S Dinah Mvoi also dated 4/1/2024. ii.This tribunal had no authority to adjudicate over the agreement to settle the debt for M/S Dinah Mvoi at Kshs.146,000/-.iii.He did not have any outstanding rent arrears as he paid the same when the same fell due – Annexture “JCN-3”.iv.The Landlord has abandoned his obligations to carryout major renovations on the premises and which he had taken up at very great costs.v.Due to leakages in the premises, electrical fittings had been interfered with by rains and thus caused his Television set to blow up, the sewerage system had collapsed and that the demised premises were dilapidated.vi.He had spent Kshs.167,500/- on renovations to make the premises habitable which he was planning to claim.vii.There was an understanding that the tenancy would be renewed and the reason he had invested heavily in the premises.viii.The lease should be extended to enable him recoup the expenses he had incurred in improving the demised premises.

9. He therefore sought that the reference and application herein by the landlord be dismissed as the same lacked in any merit. At this point I wish to recognize that when the application dated 8/2/2023 was brought to my attention, I reluctantly allowed the same to the extent that the Tenant was allowed to defend the reference. He was also allowed until 20/2/2024 to file submissions. This despite the reality that the Tenant had not taken any steps to defend the reference nor the notice of motion dated the 27/5/2023 and despite the matter coming up before the court for hearing a record 7 times. I also sadly note that at one time, the Tenant’s counsel purported to have filed responses to the reference and the notice of motion application dated 27/5/2023 which was not the case.

10. At the time of writing this judgement, the Respondent had not filed any submissions pursuant to the leave granted by this court on the 15/2/2024. The same if at all were to have been filed by the 20/2/2024.

11. From the materials before me, the issues for determination by this court in my view are the following,A.Whether the Notice of termination of Tenancy dated 27/5/2023 is lawful.B.What was the effect of the Tenancy Agreement dated 4/1/2021. C.Whether the respondent owes any rent arrears to the Applicant and at what amount if at all.D.Who should bear the costs of this suit.ISSUE NO. A. On whether the notice to terminate dated 27/5/2023 is lawful, am guided by Section 4(2) of the Act which states that:-“A landlord who wishes to terminate a controlled tenancy, or to alter to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under such a tenancy shall give notice in that behalf to the Tenant in the prescribed form”.

12. Regulation 4(1) of the Regulations to the Act provide that,“A notice under section 4(4) of the Act by a landlord shall be in form A in the schedule to these Regulations”.And most importantly in respect to the matters at hand, section 4(4) of the Act provides that:“No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party, as shall be specified therein”.

13. In the present case, the termination notice was given on the 3/1/2023 to take effect on the 5/1/2023. That was in clear and plain conflict with the provisions of Section 4(4) of the Act and therefore untenable, unlawful and of no effect. In the case of Narshidas and Co. Ltd – vs- Nyali Air conditioning and Refrigeration services ltd civil Appeal no. 205 of 1995 the court held that,“The notice of termination shall not take effect earlier than 2 months from the date of receipt thereof by the tenant and the notice must also specify the grounds upon which termination is sought…………….the notice to quit given or issued by the defendant was clearly void and had no effect in law on the plaintiff’s tenancy and the plaintiff was under no duty legal or otherwise to react to it”.

14. I therefore determine that the Notice of termination dated 3/1/2024 was unlawful and a nullity in law abinitio and of no effect nor consequence.

ON ISSUE NO. B- what was the effect of the Tenancy Agreement dated 4/1/2021. 15. Both parties do acknowledge having executed the said Tenancy Agreement dated 4/1/2021. Indeed they have individually produced the same as evidence in this matter. paragraph 5 (a) of the Tenancy Agreement read as follows,-“That the tenancy herein is for a period of two (2) years but renewable on terms as shall be agreed by the parties”.The Applicant in clear demonstration of intention not to renew the tenancy agreement, he issued to the Tenant the termination notice dated 3/1/2023. The tenant is apparent acquiescence did not respond to the same. The tenant on his part from materials on record had not expressed any intention of having the same renewed.

16. The duty of this court is to enforce the parties intentions especially in written contracts or agreements. The court cannot craft agreements for the parties or empathise with bad deals coming out of voluntary engagements.In the present case, the parties entered into a tenancy agreement for a term of 2 years to run between 4/1/2021 and 4/1/2023. This tribunal has no wherewithal to re-write the contract between the parties. In the case of Housing Finance Company of Kenya Ltd – vs- Njuguna KLR 1176(CCK) the court held that:-“contracts belong to parties and they are at liberty to negotiate and even vary the terms as and when they choose.This they must do together with the meeting of the minds. If it appears to a court that the party varied the terms of a contract with another, without the knowledge, consent or otherwise of the other, and the other demonstrates that the contract did not permit such variation, this court will say no to the enforcement of such a contract”.

17. The court of Appeal in the case of Pius Kimaiyo Langat – vs- Co-operative Bank of Kenya Ltd (2017) e KLR held that:-“Alive to the hallowed legal matim that it is not the business of courts to rewrite contracts between parties as the said parties were bound by the terms of their contracts unless coercion, fraud or undue influence are pleaded and proved”.

18. The upshot of this is that the tenancy between the parties herein and dated 4/1/2021 effectively terminated on the 4/1/2023.

ISSUE NO. C- Whether the respondent owes any rent arrears to the Applicant and at what amount if at all?. 19. In the notice of termination of Tenancy dated 3/1/2023 the Applicant owed rent in arrears from April, 2022. He did not state the amount. In the reference dated 27/3/2023, the Applicant claimed Kshs.140,000/- in rent arrears effective August 2022. In his evidence in court, the Applicant claimed Kshs.154,000/- including the rent for January 2024. Further in his letter dated 3/1/2023, the Applicant had claimed Kshs.126,000/- in rent arrears which was heavily disputed by the Tenant in his undated letter in response to the letter dated 3/1/2023 by the landlord’s advocate.

20. The Tenant further asserted that he was upto date in payment of rent and annexed a bundle of receipts. He complained that sometimes he paid rent and the landlord issued receipts for dates long before the tenancy agreement was entered into.

21. I have seen the following receipts:-i.For Kshs.60,000/- for December 2019, January and February 2020. ii.Kshs.12,000/- for July 2020,iii.Kshs.12,000/- for August 2020 and many others which leaves a lot of doubts on whether the Tenant is in any rent arrears.

22. Section 107 of the evidence Act provides that,“whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist”.In the case of Hellen Wangari Wangechi – vs- Curumera Muthini Gathua (2005) e KLR Justice Mativo held that:-“It is a well established rule of evidence that whoever asserts a fact is under an obligation to prove it in-order to succeed. As observed above, the appellant made an allegation in the plaint, hence he was under an obligation to support the allegation”.

23. In this matter, the Tenant coupled being in any rent arrears. His assertion that the rent paid was issued with receipts of dates before the Tenancy commenced were not rebutted in anyway. This coupled with the different versions given of the rent allegedly in arrears due by the Applicant leaves a lot of bout in the mind of this court. I therefore resolve the issue in favour of the Tenant that there is no rent arrears owed by the Tenant to the Applicant on the premises.

24. I am alive to a claim of Kshs.96,000/- claimed by the Applicant on the strength of the commitment dated 4/1/2021 made by the Respondent in favour of Dinah Mvoi. Am plainly of the view that the issue does not follow in the province of this court. However from the evidence on record it is that the entire debt was Kshs.146,000/-. The Respondent paid Kshs.50,000/- leaving a balance of Kshs.100,000/-. The Applicant has in his affidavit sworn that the Tenant over and above paying the monthly rent at Kshs.14,000/- he also paid Kshs.10,000/- monthly to liquidate the Kshs.100,000/-. According to the Applicant, he did this for at least 10 months. This is to say that he paid Kshs.96,000/- against the debt of Kshs.96,000/- I do not want to say more on that.

ISSUE NO. D-__ Who should bear the costs of this suit. 25. This is one case that persuades me to depart from the wisdom of the proviso to section 27 of the civil procedure Act and direct that each party bears own costs.This is informed by the fact that the parties lost and won in equal measure in these proceedings.

26. In conclusion, the orders that commend themselves to me are the following:-i.That the notice of termination of tenancy dated 3/1/2023 is unlawful and therefore of no legal effect nor consequence.ii.That the Tenancy agreement dated 4/1/2024 between the Applicant and the Respondent lapsed on the 4/1/2023 and ceased to be of any legal effect nor consequence.iii.That the Tenant is allowed seven (7) days to evacuate from the demised premises being title no. Voi Town/1956/368 indefault he be evicted at his own costs.iv.That the claim for rent arrears has no merit and is dismissed.v.That each party shall bear own costs of this suit.

Those are the orders of the court.

JUDGEMENT SIGNED AND DELIVERED VIRTUALLY AT KAKAMEGA THIS 28TH DAY OF FEBRUARY, 2024. HON. NDEGWA WAHOME MBSMEMBERBUSINESS PREMISES RENT TRIBUNALJudgement delivered in the presence of the Applicant/Landlord, M/S Ngetich Chura advocates for the Tenant/Respondent absent.HON. NDEGWA WAHOME MBSMEMBERBUSINESS PREMISES RENT TRIBUNAL