[2022] KEBPRT 806 (KLR)

Mamboleo v Kangethe (Tribunal Case E740 of 2021) [2022] KEBPRT 806 (KLR) (Civ) (2 November 2022) (Judgment)

Neutral citation: [2022] KEBPRT 806 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E740 of 2021

Gakuhi Chege, Vice Chair

November 2, 2022

Between

James Mamboleo

Tenant

and

Paul Mbugua Kangethe

Landlord

Judgment

1. The landlord herein served the tenant with a tenancy notice dated November 9, 2021 seeking to terminate his tenancy over LR No Nairobi/Thiboro Township/25 with effect from February 1, 2022. The grounds cited are that the landlord wishes to renovate, redesign and upgrade the premises which have been in a terrible want of repairs.

2. Being opposed to the termination, the tenant filed the instant reference under section 12(4) through form C dated December 6, 2021 stating that he was served with the notice dated November 9, 2021 by the landlord’s agent. The tenancy is alleged to be renewable every 6 years as per tenancy agreement which is not exhibited.

3. The tenant contends that the premises have been in a deteriorating and disrepair condition for several months making it impossible for him to conduct business as intended in the tenancy agreement.

4. The tenant contends further that he made several appeals to the landlord who refused , failed and/or ignored to act. The roof had begun leaking and electronic devices were damaged.

5. The tenant states that he decided to undertake roof repairs in person which included replacing the asbestos roof with durable iron sheets, plastering the walls and repainting of the premises at a cost of Kshs 300,000/-. He never asked the landlord to reimburse the said costs.

6. The landlord’s agent died in September 2021 and a new agent Paul Mbugua Kangethe took over. The agent after noticing the developments was overwhelmed with greed according to the tenant and decided that he could lease the premises to another person at a higher rent.

7. As such, the notice by the landlord is meant to serve a collateral purpose different from the grounds stated in the notice according to the tenant as the intention of the agent is to get a new tenant to replace him and benefit from the developments made on the premises.

8. In a replying affidavit sworn on February 21, 2022, the landlord deposes that the property was given to him through Nairobi HC Succession Cause No 241 of 1980. He denies existence of a six (6) years lease with the tenant.

9. The landlord confirms that the suit premises is his inheritance and as deponed by the tenant was in a deplorable condition. He denies ever giving the tenant consent to spend Kshs 300,000/- on repairs. He denies being an agent in respect of the premises neither has he ever appointed an agent.

10. The landlord denies that he has sourced for other tenants for higher rent as alleged by the tenant as the premises are in bad shape for occupation.

11. In a further affidavit sworn on May 25, 2022, the landlord annexed as ‘PMK1, a certificate of confirmation of grant rectified on March 14, 2018 showing that the suit premises/property was given to him making him the legal owner.

12. The landlord filed a witness statement dated July 5, 2022 in compliance with directions given by the tribunal/on July 4, 2022. The landlord states that the subject shops were constructed in the 1990’s and have fallen into disrepair making them economically untenable.

13. The landlord states that he has had an intention of renovating the suit premises since 2018 but the tenant is the only one who has refused to vacate the premises. Al the other tenants complied with the notices to vacate.

14. The matter came up for hearing on September 15, 2022 when the tenant unsuccessfully sought to adjourn the matter through an advocate who was not on record on his behalf. The same was rejected on the basis that the said advocate had no locus standi to act in the matter.

15. By the date of hearing the case, the tenant had not complied with Order 11 of theCivil Procedure Rules. The landlord was allowed to testify virtually from his location in Missouri United States of America having waited online for his matter to be reached until the early morning hours in his country of residence.

16. I am now required to determine whether to uphold or dismiss the tenancy notice herein. I am also required to determine who is liable to pay costs of the reference.

17. I note that the instant reference was filed pursuant to section 12(4) of cap 301, Laws of Kenya instead of section 6(1) of the said Act. I will however treat it as a reference against the notice under section 6(1) of the said Act.

18. The tenant admits that the suit premises was in a bad state of repair and that he had to replace the leaking roof. Although the tenant contends that he effected repairs to the premises, no evidence of such repairs was presented before the tribunal. On the other hand, the landlord denies giving any consent for such repairs to be undertaken by the tenant.

19. The landlord reiterated the contents of his replying affidavit, further affidavit and witness statement when he appeared before me and confirmed that he had the necessary funds to undertake the renovations, redesign and upgrade as he had other rental properties along Waiyaki way in Nairobi. I have no reason to doubt his intention and ability to do so.

20. I have no evidence to prove that the tenant renovated the suit premises at a cost of Kshs 300,000/-. As such, I do not belief that the tenant is entitled to use that as a reason for refusal to give vacant possession of the suit premises. I shall therefore uphold the tenancy notice.

21. As regards costs, the same are in this tribunal’s discretion under section 12(1) (k) of cap 301, Laws of Kenya. I have no reason to deny the landlord costs.

22. In conclusion therefore, the final orders that commend to me in this matter are:-i.The landlord’s notice to terminate the tenant’s tenancy dated November 9, 2021 is hereby upheld/approved.ii.The tenant shall vacate from LR NO Nairobi/Thiboro Township/25 forthwith and in default shall be evicted therefrom by a licensed auctioneer who shall be accorded security by the OCS of the Police Station within whose jurisdiction the suit premises is situate.iii.The tenant shall pay costs of Kshs 25,000/- to the landlord and clear any rent in arrears failing which the landlord shall be at liberty to use lawful means to recover the same.

It is so ordered.RULING DATED, SIGNED & DELIVERED THIS 2ND DAY OF NOVEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALMiss Kirui for Miss Muchina for the LandlordNo appearance for the Tenant