[2021] KEBPRT 75 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 36 OF 2021 (NYERI)

MARK KAMAU MUTHONI..................................................................................APPLICANT/TENANT

VERSUS

JACKSON GATHIGI KANYINGI T/A JACKS STOCK AGENCIES... RESPONDENT/LANDLORD

JUDGMENT

1. The landlord herein served a tenancy a tenancy notice dated 20th January 2021 seeking to terminate the tenant’s tenancy in plot no. Block 1/82 Room 34, Nyeri Municipality on grounds of non-payment of rent amounting to Kshs.13,860/-, irregular payment of rent and non -compliance with tenancy agreement.

2. As a result, the tenant instituted the reference herein which proceeded by way of Viva Voce evidence with the tenant and landlord testifying without calling any other witnesses.

3. The Landlord testified that he entered into a tenancy agreement dated 1/4/2019 with the tenant for a period of two (2) years at a monthly rent of Kshs.7700/- which was to increase by 10% every year. The tenant failed to honour the 10% increment. He was also to pay rent on every 5th day of the month. Instead on most occasions he has been paying rent at the end of the month.

4. The landlord produced a rent account statement showing how rent was being remitted by the tenant. He testified that the tenant did not honour the rent increment on 1st April 2020 to Kshs.8470/- and owed Kshs.9240/- in arrears.

5. In the year 2021 he was in arrears of Kshs.6776/-. According to the landlord, the total arrears for 2020 and 2021 was Kshs.16,016/- as at November 2021. As at 8/11/2021 when he testified, rent for November 2021 had not been paid.

6. The lease expired on 31/3/2021 but the tenant did not vacate. According to the landlord, the initial agreement did not have an escalation clause.

7. The second agreement was witnessed by the landlord’s secretary. The landlord denied having objected to payment of rent by cheque but agreed with the tenant that he wrote a letter dated 2/7/2020 to the effect that the tenant pays rent in cash to avoid bank commission.

8. The landlord agreed with the tenant that he pays rent but irregularly. He denied being aware that the tenant was the spokesperson for other tenants.

9. On his part the tenant stated that he opposed the termination notice as his family relies on the premises to educate his children and cater for it. He had established a customer base and has been paying government taxes for the business.

10. The tenant testified that he had no rent arrears and by the time of testifying had only rent for November 2021 to pay. He denied knowledge of the tenancy agreement dated 1/4/2019. He produced the initial 2013 agreement and attestation receipt as D. Exhibit 1(a) and (b) respectively.

11. The tenant testified that the landlord increased rent by 50% every two years during the currency of the first agreement and threatened him with eviction if he failed to comply. He produced 4 such letters.

12. The tenant resorted into paying rent by way of cheques owing to delay by the landlord in issuing receipts. The last receipt issued was on 31/8/2020. The tenant feared it was a gimmick to chase him away if he paid rent without evidence of such payments.

13. The tenant testified that the landlord had not issued receipts from September 2020 to the date he testified. He did not provide bank account details to enable direct payments into the account.

14. The tenant stated that in a letter dated 27/4/2020, the landlord acknowledged that he was representing other tenants and had raised an issue of delayed rent payments on account of Covid -19 pandemic.

15. The tenant explained that the pandemic prevented him from paying his rent by 5th day of the month. The tenant stated that he had not been given any agreement witnessed by a lawyer.

16. In cross-examination, the tenant acknowledged previous complaints by the landlord against him on rent arrears. The tenant however maintained that he did not sign the second agreement.

18. He denied that there was a second agreement. He further denied agreeing on the new rent of Kshs.7700/- with the landlord. He denied being an irregular tenant. Despite delay in payment of rent, the tenant stated that he had not failed to pay rent.

18. The tenant maintained that the signature in the disputed agreement was different from that in the first agreement and the cheques issued by him to the landlord.

19. I am now required to determine whether to dismiss or uphold the tenancy notice. I am further required to determine who is liable to costs.

20. Under section 4(2) of Cap. 301, 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 is required to give notice to the tenant in the prescribed form to that effect.

21. Section 7(1) (b) of the Act stipulates that a landlord can terminate tenancy on grounds that the tenant has defaulted in paying rent for a period of two months after such rent has become due or payable or has persistently delayed in paying rent which has become due or payable.

22. The initial tenancy agreement between the two parties was entered into on 18th November 2013. It was produced by the tenant as exhibit D. Exhibit 1(a). It was duly attested by an advocate.

23. The second agreement produced by the landlord as P. exhibit 1 is expressed to have been executed on 1/4/2019 and is witnessed by one Filomena Wanjiru Macharia who is said to be the landlord’s secretary. The tenant disputes having signed the agreement. The witness was not called to confirm or authenticate the said execution.

24. Section 3(3) of the Law of Contract Act, Cap. 23, Laws of Kenya provides as follows:-

“No suit shall be brought upon a contract for the disposition of an interest in land unless:-

i. Is in writing

ii. Is signed by all the parties thereto and

iii. The signature of each party signing has been attested by a witness who is present when the contract was signed by such party”.

25. Section 3(6) of the said Act defines the term “disposition” to include a transfer and a device, bequest or appointment of property in a will. It further defines the term “transfer” to include “a mortgage, charge, lease, conveyance, assignment, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or any interest therein by any instrument other than a will or a codicil”.

26. I have looked at the document headed “MEMORANDUM OF LETTING AGREEMENT” and the signature of each party signing has not been attested by a witness as required by the said Act.

27. Secondly, although it became clear from the word go that the tenant disputed execution of the said agreement, the landlord did not call independent evidence to authenticate the signing.

28. Thirdly, I have looked at the signature in the disputed agreement ascribed to the tenant vis a vis the one contained in the initial agreement and IT LOOKS DIFFERENT AND REQUIRED AUTHENTICATION.

29. The tenancy notice subject matter of the reference being predicated on the escalation clause in the disputed agreement and the date indicated for payment of rent therein stands on very shaky ground in the foregoing circumstances.

30. Section 7(1) (b) of Cap. 301 applies where rent for two months remains unpaid. In the present case, the landlord has not demonstrated that the tenant was in arrears for two (2) months prior to issuing the said notice.

31. The tenant explained that the delay in payment of rent has been occasioned by the effects of Covid-19 pandemic. Under section 59 of the Evidence Act, Cap. 80, Laws of Kenya, the effects of Covid -19 pandemic is a fact of judicial notoriety which need not be proved. I therefore take judicial notice of the same.

32. In the premises, I am not convinced that the landlord has proved the grounds contained in the tenancy notice subject matter of the reference.

33. Under section 12(1) (b) of Cap. 301, I find and hold that the rent payable in respect of the suit premises is Kshs.7700/- which can only be altered under the procedure set out in the Act. As such the tenant cannot be deemed to be in rent arrears based on the impugned agreement dated 1st April, 2019.

34. The upshot of my foregoing analysis is that:-

a. The tenancy notice dated 20th January 2021 is hereby dismissed.

b. The tenant’s reference dated 24th March 2021 is hereby allowed.

c. The monthly rent payable by the tenant is Kshs.7700/- in respect of the demised premises.

d. The tenant is awarded Kshs.10,000/- in costs which shall be defrayed against the rent account.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 17TH DAY OF DECEMBER, 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Muchiri for the Landlord

Tenant present in person.