[2021] KEBPRT 71 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 38 OF 2021 (NAIROBI)

MIKE MULI...............................................................................................TENANT

VERSUS

JUSTUS MWANDIKWA KILONZO............................................. LANDLORDS

ESTHER KALEE AARON

PAULINE JOHANA

ROSE MWENDE JOHN

FRIDAY KASILA REGINAH T/A REGINA & SONS

RULING

1. By a motion dated 25/10/2021, the landlord moved this Tribunal seeking for dismissal of the tenant’s complaint for being an abuse of court process. He further seeks leave to levy distress and the OCS Mwingi Police Station to enforce the orders herein.

2. The application is supported by the landlord’s affidavit sworn on 25th October 2021 and the grounds set out on the face of the application.

3. The Respondent in the application is a tenant at the landlord’s premises known as plot no. 111, House no. 2, Mwingi Town paying a monthly rent of Kshs.15,000/-. He was required to pay two (2) months security deposit with first month’s rent as per the lease agreement marked ‘JMK1’.

4. The lease was for 2 years from July 2019 to July 2021 and expired on 31st July 2021 but the tenant was still in occupation inspite of the tenancy having expired.

5. By the time of expiry of the lease, the tenant was in rent arrears of Kshs.181,000/- being 12 months rent. The Tenant continues to occupy the premises without paying any rent with the rent arrears and mesne profits standing at Kshs.226,000/- as at the date of swearing the affidavit.

6. The tenant proceeded to seek ex-parte orders on 14/1/2021 restraining the landlord from levying distress. Since obtaining the said orders, the tenant has not taken any step to prosecute the application or the suit more than 8 months thereafter and continues to occupy the premises without paying rent to the landlord.

7. As such, it is the landlord’s case that the complaint by the tenant ought to be dismissed for being an abuse of court process as the suit was filed with the intention of avoiding his contractual obligations.

8. The tenant has been operating his business throughout and earning an income at the expense of the landlord who depend on the rent for upkeep and have been left in penury and destitute.

9. The application is opposed through a replying affidavit of the tenant sworn on 15th November 2021 wherein it is stated that the same is premature and incompetent.

10. It is contended that there is no authority in support of the affidavit sworn by the 1st Respondent on behalf of the others. According to the tenant, the monthly rent has never been assessed by the Tribunal and ought to be assessed first.

11. The tenant admits that the tenancy agreement expired in July 2021 but states that the tenancy has been extended by implication and is now under the jurisdiction of this Tribunal.

12. Clause 10 of the agreement provided for renewal of the tenancy which was done by operation of the law according to the tenant.

13. The tenant states that there was a space at the back of the suit premises which the landlord did not permit him to develop and as such the landlord was unjustly claiming rent for the unused space.

14. The tenant deposes that the suit premises had a leaking roof and the entrance was in a pathetic condition and his attempts at repair were thwarted by the landlord. The tenant further claims harassment by the landlord through advocates and auctioneers.

15. The delay in prosecuting the suit has been blamed on scaled down court operations on account of Covid-19 pandemic.

16. The tenant states that he was ready to deposit rent in the Tribunal upon assessment pending hearing of the matter.

17. In a further affidavit sworn on 17th November 2021, the landlord has attached the authority to plead on behalf of the other Respondents. He denies demolition of any part of the tenant’s premises and in any event no consent was sought or granted to undertake renovations on the suit premises.

18. The application was directed to be disposed of by way of written submissions. Although both parties indicated having filed written submissions, only the tenant’s are on record.

19. I am now called upon to determine the following issues:-

(a) Whether the landlord/tenant relationship between the tenant and landlord still subsists.

(b) Whether the landlord is entitled to the reliefs sought.

(c) Who is liable to pay costs?

20. In the case of Republic – vs- Chairperson, Business Premises Rent Tribunal at Nairobi & Another ex-parte Suraj Housing & Properties Limited & 2 Others (2016) eKLR the court cited with approval the decision in Pritam – vs- Ratilal & Another (1972) EA as follows:-

“As stated in the landlord and tenant (Shops, Hotels and Catering Establishments) Act itself, it is an Act of Parliament to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto. The scheme of this special legislation is to provide extra and special protection for tenants. A special class of tenants is created. Therefore, the existence of the relationship of landlord and tenant is a pre-requisite to the application of the Act and where such relationship does not exist or it has come to or been brought to an end, the provisions of the Act will not apply. The applicability of the Act is a condition precedent to the exercise of jurisdiction by a tribunal, otherwise the tribunal will have no jurisdiction. There must be a controlled tenancy as defined in section 2 to which the provisions of the Act can be made to apply. Outside it, the Tribunal has no jurisdiction”.

21. It is not in dispute that the tenant and landlord entered into a tenancy agreement dated 29th May 2019 for a period of two years from July 2019 to July 2021 with the monthly rent being agreed at Kshs.15,000/-. The rent according to Clause 5 of the agreement was strictly payable to the landlord’s bank account stated therein with the banking slip being forwarded to the landlord’s agent office. Rent was agreed to be payable by 10th of every month.

22. The tenant has not controverted the landlord’s contention that by the time the instant proceedings were instituted, he was in arrears which had accumulated to Kshs.181,000/- by July 2021 when the lease expired.

23. The tenant’s explanation is that rent has never been assessed by the Tribunal. No law has been cited for the said proposition as there is no such requirement under Cap. 301, Laws of Kenya.

24. Although the tenant contends that the lease upon expiry was extended by operation of the Law under Clause 10 thereof, the said clause provides that such extension was to be by mutual agreement and the landlord was to make major repairs on the premises where necessary before its renewal.

25. By dint of Section 97 of the Evidence Act Cap. 80 Laws of Kenya, the agreement having been reduced into writing contains all the matters agreed upon and cannot be interpreted otherwise. In any case, this court cannot make a new contract for parties and has to rely on what was mutually agreed upon by them. In this regard, I wish to cite the decision in Jiwaji – vs- Jiwaji (1968 EA 547 at page 550 letter E where it was held thus:-

“The courts will not of course, make contracts for the parties but they will give effect to their clear intention”.

At page 554, the court went on to hold:-

“But where there is no ambiguity in an agreement, it must be construed according to the clear words actually used by the parties and it would be quite wrong to adopt a different construction or to imply a term to the contrary effect”.

26. There is no provision in the agreement entered into between the two parties to the effect that the term of lease would be extended by operation of the law once it came to an end in July 2021.

27. Once the agreement came to an end, the tenant had an option to seek for renewal by mutual agreement or vacate from the suit premises. In this regard, I wish to rely on the decision of the court of appeal in Kasturi Limited – vs- Nyeri Wholesalers Limited (2014) eKLR at paragraph 15 where it was held as follows:-

“On the counter-claim for vacant possession of the premises, we cite with concurrence the dicta by Lord Halisbury in Jacob – vs- Booths Distillery Co. 85 LTR at page 262 where he stated that “there are some things too plain for argument- In the present case, it is plain that the tenancy agreement between the parties expired on 14th April 2009 and has never been renewed. It is also plain that the appellant received a notice for non-renewal of the tenancy. We concur with the learned Judge that the appellant has no triable issue in the counter-claim for vacant possession. It is the duty of courts to ensure that no individual is prevented from taking possession and or enjoying their property. A tenant cannot impose or force him/herself/itself on a landlord. In the instant case, when the lease between the parties expired, it was incumbent upon the appellant to give vacant possession………….”.

28. In this case, the tenant continued to occupy the suit premises without the consent of the landlord or renewal of the lease agreement. He has not paid any rent to the landlord thereafter and the tenancy cannot be deemed as having been renewed.

29. In regard to the tenant’s contention that there is need to assess rent and that there are pending proceedings to that effect, I note that the rent payable for the suit premises was agreed upon by mutual negotiation between the parties and this Tribunal cannot interfere with it moreso after the lease has come to an end. I find that the complaint in that regard is meant to muddy the pure streams of Justice and therefore reject the same.

30. In the premises, the landlord is entitled to the orders sought in the application and in line with the provisions of section 12 (1) (e) and (4) of Cap. 301, I shall make orders in regard to possession of the suit premises to avoid a multiplicity of similar applications in future by either party.

31. In conclusion, I make the following final orders:-

(a) The landlord’s application dated 25/10/2021 is hereby allowed in terms of prayers 2, 3 and 4 with costs.

(b) The tenant’s application dated 12th January 2021 is dismissed and the orders given on 14th January 2021 are hereby vacated and/or discharged forthwith.

(c) The tenant shall give vacant possession of the suit premises forthwith failing which he shall be evicted therefrom by a licensed auctioneers who shall be given security by the OCS, Mwingi Police Station during the exercise.

(d) The landlord is awarded costs of the reference.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 24TH DAY OF DECEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

IN THE PRESENCE OF:

MWANIKI FOR THE LANDLORD

KILUVA FOR THE TENANT