[2021] KEBPRT 468 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

AT NAIROBI

BPRT CASE NUMBER 154 OF 2020 CONSOLIDATED WITH BPRT 1 OF 2021 (NAKURU)

MOSES MUGERIA NJUKI T/A

BEEHIVE RESORT………………………………………….……TENANT/APPLICANT

VERSUS

JORAM MUYA WAWERU…………………….………..…LANDLORD/RESPONDENT

RULING

By an application dated 30th December 2020, the Tenant/Applicant is seeking for orders:-

1. THAT this application be certified urgent and be heard ex-parte in the first instance (spent).

2. THAT the Respondent either by themselves, servants, agents and/or employees be restrained by an order of this tribunal from interrupting the Applicant's quiet enjoyment, use, occupation and/or business operations, from accessing, entering into, closing and /or shutting down, attaching, distressing, carting away goods, equipment, material and/or in any other way evicting, harassing, intimidating, threatening and/or interfering with the Tenant/Applicant’s occupation and/or tenancy on the business premises known as Naivasha/Maraigushu/Block 17/12 situated within Naivasha town in Nakuru County, pending the hearing and determination of this application.

3. THAT the Respondent either by themselves, servants; agents and/or employees be restrained by an order of this tribunal from interrupting with the applicant's quiet enjoyment, use, occupation and/or business operations, from accessing, entering into, closing and /or shutting down, attaching, distressing, carting away goods, equipment, material and/or in any other way evicting, harassing, intimidating, threatening and/or interfering with the Tenant/Applicants occupation and/or tenancy on the said business premises on the premises known as Naivasha/Maraigushu/Block 17/12 situated within Naivasha town in Nakuru County pending the hearing and determination of this reference .

4. THAT the rent in respect of the business premises rented herein be pegged at Kshs. 25,000/= per month payable by the tenant to the Landlord.

5. Any other and/or further order(s) that this Honourable Court may deem fit just and expedient to grant.

6. Costs of this application be provided for.

The application is grounded upon the affidavit of Moses Mugeria Njuki sworn on 30th December 2020 and on the grounds:-

1. THAT the Landlord/Respondent either by itself and/or agents has initiated an illegal process of evicting the Tenant/Applicant.

2. THAT the said eviction notice is illegal, uncalled for, being carried out whimsically and arbitrarily for the reason that the Tenant/Applicant is not in any rent arrears to date.

3. THAT no notice has been issued to the Tenant/Applicant by the Landlord/Respondent notifying him of any rent arrears and the exact amount if any.

4. THAT this application 'has been brought timeously and in the interest of justice.

It is not in dispute that the tenant/applicant is in occupation of the Landlord/Respondent's premises situated on land known as Naivasha/Maraigushu Block 17/12 within Naivasha wherein he operates a bar and lodging business.

It is the applicant’s case that on 25th September, 2020 he entered into an agreement with the respondent to lease the premises known as Naivasha/Maräigushu Block 17/12 whereby they agreed inter alia that he would pay rent on the 5th day of every month at Kshs 55,000/=.

The applicant deposes that owing to the ravaging Covid-19 pandemic that greatly affected his business, he agreed with the respondent to reduce the monthly rent to Kshs. 25,000/= until October, 2020 and that from November, 2020 going forward the rent per month would be Kshs. 35,000/= which he has already paid.

In keeping his end of the bargain, the applicant states that he has been making the payments specified in the agreement in respect of rent obligations and had by the time of filing this case settled rent for the m?nths of October, November and December, 2020 at Kshs 25,000/=, Kshs. 55,000/=and Kshs 35,000/= respectively.

The applicant complains that the Respondent has initiated an illegal process of evicting him.

He deposes that to his utter surprise, the respondent served him with an eviction notice dated 1st October, 2020 with claims that he had defaulted to observe the terms of the agreement in regard to rent payment which was false.

According to the applicant, it is the respondent herein who has gone against the terms of the lease agreement by seeking to evict him without any valid reason and without following due process.

It is the applicant’s case that the respondent’s actions are illegal and against the law and the notice to vacate is misconceived and void ab initio.

The applicant contends that no demand notice of any arrears has ever been issued to him by the Respondent.

The applicant prays for reduction of rent to Kshs 25,000/= on the grounds that the Landlord/Respondent had agreed to fix and/or restore the temporary extension structures that the applicant had been using on the rented premises whose removal had affected his profit margins but had failed to do so.

According to the applicant, the current rent was pegged on the fact that the business establishment was intended to operate for 24 hours which was overtaken by events considering the Covid-19 pandemic and the measures undertaken by the government that greatly affected the environment within which businesses operated.

It is the applicant’s case that the orders sought herein are meant to protect him from loses he would suffer if eviction was carried out as he has heavily invested in the business and if the orders sought herein are not granted, he stands to suffer great financial loses.

In response to the application, the Landlord/Respondent filed a replying affidavit on 25th February 2021stating that he was never served with the application dated 30th December 2020 and only came to learn about it when he came to this honourable Tribunal to pursue his own application.

The Respondent admits that he agreed with the tenant that he pays Kshs. 25,000/= being the rent for October, 2020 but fromNovember, 2020 onwards the

Tenant/Applicant was required to continue paying his rents as contained in the Lease agreement i.e. Kshs. 55,000/= on or before 5th day of every succeeding month.

The Respondent deposes that although the Tenant/Applicant paid rent forOctober and November, 2020 in full, he only paid Kshs. 35,000/= instead of the requisite amount of Kshs. 55,000/= as stipulated in the lease agreement and thus has a balance of Kshs. 20,000/= for the month of December, 2020.

The Respondent denies that he used illegal process to evict the Tenant/Applicant as he obtained a Landlord's notice to terminate or alter terms of tenancy dated 15th October, 2020 from this Honourable Tribunal which the Tenant/Applicant has never objected to date despite being served.

It is the Respondent’s case that the Tenant/Applicant has not been observing the terms of the Lease agreement as he defaulted to pay rents on time and when he was called to enquire about the same, he used abusive language and switched off his phone.

According to the Respondent, the Tenant/Applicant will not suffer great financial loses as he can relocate elsewhere and carry on with his business the way he deems fit and just after having proved to be hostile.

In his application dated 6th January 2020, the Landlord is seeking that the Tenant be ordered to vacate the demised premises on account of failure to file reference in this Tribunal to oppose the Landlord’s notice to terminate tenancy dated 15th October 2020 which took effect on 1st January 2021.

Pursuant to Section 10 of the Act, the Landlord avers that the tenant became a trespasser in the premises for failure to file reference to tribunal and he therefore seeks for eviction orders.

He further seeks that the OCS Naivasha Police Station to ensure compliance of the orders so that peace prevails.

The application is supported by the Landlord’s affidavit sworn on 6th January 2021 and on the grounds:-

(1) That the tenant/respondent was issued with a Landlord’s notice of termination of tenancy dated 15th October 2020 which was expressed to take effect on 1st January 2021and the tenant has not filed a reference.

(2) That the respondent has committed other serious breaches of his obligation as a tenant by using abusive language against the Landlord.

(3) That the tenant is a persistent rent defaulter.

It is the Landlord’s case that he is the proprietor of all that parcel of Land known as Maragushu Block 17/12 Naivasha and that the respondent herein is his tenant.

The tenant breached the lease agreement entered into on 15th September, 2020 regarding payment of rent.

The Landlord issued notice to terminate or alter terms of tenancy dated 15th October 2020 w.e.f 1st January 2021 under Cap 301 laws of Kenya.

The tenant has not filed reference to the Tribunal to oppose the same but instead wrote a letter using derogatory and abusive language against the landlord.

Under section 10, Cap. 301 Laws of Kenya, failure to file reference to tribunal renders one a trespasser and the Landlord therefore seeks for eviction orders against the Respondent for failure to file a reference.

ISSUES FOR DETERMINATION & DISPOSITION

From the foregoing pleadings, the following issues arise for determination:-

(A)Whether the Tenant is entitled to the reliefs sought in the application dated 30th December, 2020;

(B)Whether the Landlord is entitled to the orders sought in the application dated 6th January 2021.

(C) Who is liable to pay costs of the suit?

On 26th January 2021, directions were given that the two cases namely BPRT NO.154/2020 & BPRT NO. 1/2021to be heard together.

The matter was set down for hearing on 8th February, 2021 when the Tenant applied for adjournment on the grounds that his counsel was involved in a road accident on the way from Nakuru. The application was allowed and the case fixed for hearing on 4th March 2021.

On the said date, the landlord who is acting in person applied for his application dated 6th January, 2021to be allowed as the tenant did not file a reference to oppose the notice of termination of tenancy.

In regard to the Tenant’s application dated 30th December, 2020 the Landlord stated that he had responded to it and urged that his reply be considered.

Miss Theuri who held brief for Mr. Makori sought for adjournment saying that Mr. Makori was appearing in the High Court in a matter whose details she did not have. The application was declined and the matter ordered to proceed.

At 3. 55 pm, Miss Mbuvi appeared holding brief for Mr. Makori and applied for the application dated 30th December 2020 to be allowed on the grounds that the same was unopposed by the Landlord and requested for time to respond to the Landlord’s application dated 6th January, 2021.

The Landlord in reply argued that he replied to the application dated 30th December, 2020 through an affidavit sworn on 24th February, 2021 and filed in court on 25th February 2021.

Having declined to allow a previous application for adjournment, the court proceeded to fix the matter for ruling based on representations made by both parties and documents on record.

I have therefore looked at the evidence presented before me by both parties and make the following findings:-

(a) The Tenant has failed to establish that he is entitled to the reliefs sought in the application dated 30th December, 2020 as he has not demonstrated that the Landlord has in any way interfered with his quiet possession and enjoyment of the demised premises.

(b) The notice of termination of tenancy served upon him is clearly provided for under Cap. 301 of the Laws of Kenya and issuance thereof cannot amount to harassment or intimidation of the tenant.

(c) The Landlord has been able to prove that he served notice of termination of tenancy upon the tenant who instead of filing a reference wrote an abusive letter dated 23rd October 2020 to the Landlord and thereby exposed himself to the provisions of Section 10 of Cap. 301, Laws of Kenya which is in the following terms:-

“Where a landlord has served a notice in accordance with the requirements ofsection 4of this Act, on a tenant, and the tenant fails within the appropriate time to notify the landlord of his unwillingness to comply with such notice, or to refer the matter to a Tribunal then subject tosection 6of this Act, such notice shall have effect from the date therein specified to terminate the tenancy, or terminate or alter the terms and conditions, thereof or the rights or services enjoyed thereunder”.

(d) Having failed to file a reference to the said notice, this Tribunal cannot interrogate whether the reasons for termination given by the Landlord in his notice were justified or not.

CONCLUSION

The upshot of my foregoing findings is that:-

1. The tenant’s application dated 30th December 2020 is hereby dismissed with costs to the Landlord.

2. The landlord’s application dated 6th January 2021 is hereby allowed and the tenant is hereby ordered to give vacant possession of the demised premises forthwith and in default, the Landlord shall be at liberty to apply for execution in the Subordinate Court in the manner provided under Section 14 of Cap. 301, Laws of Kenya.

3. Costs of the application dated 6th January 2021 shall be met by the tenant.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered this 12th day of March, 2021 in the presence of the Landlord/Respondent.

HON P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL