[2004] KEHC 1256 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO 693 OF 2003

MARTIN NGURE GATERU ………………..…………… APPELLANT

VERSUS

LAWRENCE MWANIKI AND OTHERS …………….. RESPONDENT

JUDGMENT

This is an appeal from the decision of the Business Premises Rent Tribunal – Mr G K Mwaura, dated 31st July, 2002 in B. P. R. T. No 44 of 2001 (Nyeri).

Briefly the facts are that the Respondent/Landlord gave his tenant, the Appellant in this case, notice to terminate tenancy under Section 4 (2) of Cap 301 on the ground that he intended to demolish and reconstruct part of the premises. This notice was prompted by a notice that the Public Health Department served on the Respondent requiring him to undertake certain major repairs, including repairing the worn out floor, installing a ceiling, and constructing a corridor to light up the premises.

According to the Respondent’s evidence, these repairs could not be undertaken without requiring the Appellant to vacate the premises. The Tribunal agreed, and granted him vacant possession. Aggrieved by that decision, the Appellant has appealed to this court, on the following – needlessly wordy – ten grounds of appeal:

1. The learned Chairman erred in law and fact in holding that the Landlord intended to demolish and reconstr uct the disputed premises while there was no evidence on record for such holding.

2. The learned Chairman erred in law and in fact in holding that any repairs could not be done without the tenants in occupation.

3. The learned Magistrate erred in law and in fact in relying on the Public Health Department notices while the issues for determination were whether the termination of the tenancy was lawful. 4. The learned Magistrate erred in law and in fact in holding that the appellant never gave notice of none complianc e while the same was produced in court.

5. The learned Magistrate erred in law in relying on the public health notice of 3 rd December, 2001 when termination notice and proceedings has already been issued.

6. The learned Chairman erred in law and in fact in holdi ng that the Appellant and the Respondent had meetings about how to repair the premises while no such evidence was produced or rendered in Court.

7. The learned Chairman erred in law and fact in not considering evidence on record that the dispute started after disagreements and consequently that is why the notice for termination was issued only to the appellant at the exclusion of other tenants.

8. The learned Magistrate erred in law and facts in holding that repairs could not be done while the appellant was in oc cupation a position contrary to evidence on record.

9. The notice to vacate as ordered by the Chairman is too short.

10. The judgment is against the weight of evidence.

Mr Mbugua, Counsel for the Appellant, argued that the landlord was not genuine in his intention to demolish the premises, rather he wanted to terminate the tenancy over a rent dispute; that repairs could have been undertaken with the tenant in possession; that the notice to terminate was sent only to the Appellant, not to other tenants; that the Appellant had been a good tenant for 20 years.

The above argument is wholly misplaced, and completely inconsistent with the evidence before the Tribunal. It is not in dispute that the landlord was required, under the Public Health Act, to carry out substantial repairs. There is evidence that he asked for time within which to commence repairs, and was given two years – at the end of which he simply had to undertake the repairs. What more evidence of the landlord’s “genuine intent” does the Appellant want? Did he expect the landlord to compromise on the safety of the tenant and all his customers by undertaking repairs with the tenant in possession?

Having heard all the evidence, the Chairman delivered himself, in part, as follows:

“I have carefully considered all the evidence. There can be no doubt that the landlords have resolved to carry out the work of reconstruction and have put in place all the necessary preparation and have gone ahead and done part of the work. Indeed, they intend to reconstruct the premises. The project is also desirable. In fact urgently necessary in view of the requirements of the Public Health Office.

The only issue is whether it can be done with the tenant in occupation. I have noted that the tenant is not able to operate in the present status due to the effect of the demolished wall. I think this is a serious pointer to the nature of the works and of whether they can be carried out with the tenant in occupation. The floor is to be excavated so as to fix a new one. I have considered this matter. If it were only a question of repainting and other minor works, they could have been carried out with the tenant in occupation. In my view, these works are of a substantial nature as they involve removal and reconstruction of an entire wall and construction of a new floor. The work can clearly not be done with the tenant in occupation and I proceed to allow the landlord’s notice. The tenant reference is dismissed with costs.”

The above finding is consistent with the facts and evidence before the Tribunal. I agree with Ms Kiguatha, Counsel for the Respondent, that the landlord had demonstrated a firm and settled intention to demolish the premises; that vacant possession was necessary to carry out what the Chairman called “substantial” works; and that the notice was not motivated by a disagreement on rent, as there was no such disagreement.

I find that there is no reason to interfere with the judgment of the tribunal, which I am satisfied is based properly on the evidence before it, and I uphold the same. Accordingly, this appeal is dismissed with costs to the Respondent.

Dated and delivered at Nairobi this 18th day of November, 2004.

ALNASHIR VISRAM

JUDGE