[2022] KEBPRT 177 (KLR)

Mbogo v Oakridge Investment Limited (Tribunal Case 631 of 2020) [2022] KEBPRT 177 (KLR) (Civ) (10 June 2022) (Ruling)

Neutral citation: [2022] KEBPRT 177 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 631 of 2020

Gakuhi Chege, Vice Chair

June 10, 2022

Between

Raphael Mbogo

Applicant

and

Oakridge Investment Limited

Respondent

Ruling

1. The landlord herein served notice of termination of tenancy dated June 11, 2020 upon the tenant which was expressed to take effect on September 1, 2020 on grounds that the landlord intends to occupy the suit premises for a period exceeding one year for purposes of own business.

2. The second ground was that the tenant was severally late in paying rent and by then owed rent from March 2020 to Jun 2020 (both months inclusive) and that despite several demands made to rectify the same, he had neglected to settle the same.

3. The tenant filed his reference on June 24, 2020 opposing the termination notice. The landlord entered appearance on September 3, 2020.

4. On February 25, 2021, the tenant filed his witness statement and documents in compliance with order 11 of the Civil Procedure Rules, 2010. He later filed a supplementary list of documents dated May 13, 2021.

5. On March 11, 2021, the matter came up for hearing of the reference but counsel for the landlord applied for adjournment to file a response to the reference and was granted 7 days to do so. The matter was therefore fixed for hearing on April 7, 2021.

6. On April 7, 2021, the landlord and its counsel did not appear despite the date heaving been taken by consent. The tenant’s counsel indicated to court that he had spoken to Mr. Horeria Kamau who had problems loging into the virtual court and applied for adjournment to enable the landlord to file its documents. The matter was therefore slated for hearing on 18/5/2021 with leave being granted to both parties to file documents:

7. On May 18, 2021, the landlord and his counsel did not appear for hearing despite service of notice to do so. It was noted that the landlord had not filed any documents and as there was an affidavit of service on record, the matter was ordered to proceed. The matter proceeded at 12. 38 pm with the tenant giving evidence and relying on his witness statement and documents filed.

8. The gist of the tenant’s case was that he was not in any rent arrears by the time notice to terminate tenancy was served upon him. He relied on documents evidencing payment of rent and his bank statements.

9. The tenant also testified that the premises had more than 20 shops and there was no reason why he was singled out by the landlord for termination. He occupies shop no. 2 in the premises. He stated that he had been consistent in paying rent and had paid rent for March and April 2020 as evidenced by exhibits produced in court.

10. The tenant testified that he only received one demand letter from the landlord contrary to the allegation in the notice that several demands had been made.

11. The landlord had sent an auctioneer to distress for rent as evidenced by exhibit 1 page 43. By then no rent was outstanding according to the tenant.

12. The tenant therefore prays for dismissal of the tenancy notice and setting aside of the proclamation for distress of rent served upon him.

13. The landlord did not comply with order 11 of the Civil Procedure rules, 2010 neither did it attend court to defend the termination notice. It was duty bound to prove the grounds of termination set out in the termination notice. As matters stand now there is no evidence before me that the landlord required possession of the suit premises for its own use neither is there evidence that the tenant was in rent arrears for the months of March- June 2020 as alleged in the termination notice.

14. In the case of Eldomart Holdings – vs- Ticket Company Limited (2019) eKLR at page 3/3 the superior court had the following to state on the burden of proof of grounds contained in a notice to terminate tenancy:-“The legislature left no doubt that the Act was enacted for the purposes of protecting tenants. This court must have the said objective in mind while interpreting the Act. The burden was upon the appellant to establish that it had an intention of occupying the suit premises for a period of not less than one year for the purposes of own business. In the case of Auto Engineering – vs- Gonella (1978) KLR 248, it was held that the onus is on the landlord to establish a firm and settled intention to occupy the premises held by a tenant”.

15. In the present case, no evidence was adduced by the landlord to prove the grounds set out in the tenancy notice and the same is a candidate for dismissal.

16. In conclusion therefore, the final orders that commend to me are:-(i) The landlord’s tenancy notice dated June 11, 2020is dismissed and shall be of no effect pursuant to section 9(1) (b) ofCap. 301, Laws of Kenya.(ii) The tenant is awarded costs assessed at Kshs 60,000 all inclusive which shall be defrayed against the rent account if not paid within the next Thirty (30) days hereof.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10TH DAY OF JUNE 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PRESMIES RENT TRIBUNALIn the presence of:Mwaniki for the TenantNo appearance for the Respondent/Landlord