[2022] KEBPRT 877 (KLR)

Mrema v Olivejoy Care Estates Property Managers Ltd (Tribunal Case E030 of 2021) [2022] KEBPRT 877 (KLR) (17 November 2022) (Judgment)

Neutral citation: [2022] KEBPRT 877 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E030 of 2021

Gakuhi Chege, Vice Chair

November 17, 2022

Between

Joseph Mrema

Applicant

and

Olivejoy care Estates Property Managers Ltd

Respondent

Judgment

1. Through a tenancy notice March 25, 2021, the respondent/landlord is seeking to terminate the tenant’s tenancy in the business premises known as L R no 209/6911 with effect from June 1, 2021(now past) on the following grounds:a.The tenant who runs a butchery business amongst other 13 shops has converted the common area for the 13 shops to a social gathering area where the tenant entertains his friends by consuming alcohol and creating disturbance.b.Blatant disregard and harassment of security detail personnel manning the estate of Peter Kabiru.c.Disrupting the peace of other tenants by holding social events like personal birthdays and in so doing crowding the parking area to the detriment of other tenants.d.Despite the warnings of January 21, 2021 and January 25, 2021 by the administrator of the estate of Peter Kabiru, the tenant is defiant and arrogant.

2. The tenant moved this tribunal under section 12(4) of cap 301 laws of Kenya seeking restraining orders against eviction from unit 5 on land reference no 209/6911, Woodley, Nairobi (suit premises) and a status quo order was given on April 22, 2021 pending hearing inter-partes on May 17,2021.

3. The application was subsequently canvassed through written submissions and temporary orders of injunction were issued pursuant to a ruling delivered on August 19, 2021 pending hearing of the reference.

4. The parties were directed vide the said ruling to exchange witnesses’ statements and documents in support of their respective cases.

5. The matter was subsequently fixed for hearing on October 13,2022 after the landlord /respondent complied with order 11 of the Civil Procedure Rules, 2010 on March 15, 2022 by filing a witness statement of Beth kabiru and list of documents of even date.

6. The tenant did not comply with the courts’ directions and did not attend court despite clear evidence of service of a hearing notice contained in the affidavit of service of Godfrey Kinyanjui Mbugua sworn on October 12, 2022.

7. The landlord’s witness appeared virtually and adopted her witness statements as evidence testifying that the tenant was in breach of the tenancy by turning the business premises as a venue of holding social gatherings where the tenant and patrons consume alcohol into late hours of the night beyond the business hours.

8. Despite warnings sent in January,2021 from the landlord, the tenant continued with the behavior and went ahead to convert the butchery business as well as the common areas used by other 13 tenants into a social gathering area.

9. This precipitate insurance of the notice to terminate the tenancy as the tenant had refused to change his ways and was adamant in using the common area to host his friends to the detriment of the tenants. The landlord seeks that the tenancy be terminated.

10. Among the documents exhibited and relied upon by the landlord is a letter dated March 6, 2021, pleadings in tribunal case no 234 of 2021, CCTV footage and notice to terminate tenancy.

11. I am now required to determine the following issues; -a.Whether the landlord’s notice to terminate tenancy……to be upheld or dismissed.b.Who is liable to pay costs of the reference?

12. Although the tenant was obligated to file his witness statement and any documents in support of his case, he failed to do so. After he was granted interim orders of injunction in this matter, the tenant seems to have lost interest in this case as he took no single step to ensure the reference was heard.

13. It is also noteworthy that the tenant filed a complaint under section 12(4) of cap 301 instead of a reference under section 6(1) of cap 301. The two are different and it turns out that there is no valid reference against the notice to terminate tenancy legally speaking.

14. The allegations and documents tendered in evidence by the landlord’s witness remain uncontrolled and have no reason to disbelieve that the breach of tenancy complained of by the landlord actually happened and there is no justification not to uphold the termination of tenancy notice.

15. It has been contended by the tenant in previous proceedings herein that the grounds of termination cited are not based on section 7 (1) of cap 301. I however find and hold that the grounds set out under the said section are not exhaustive and the words used in the section are ‘’may be such of the following grounds” This therefore allows a party to rely on any other ground a part from those listed.

16. I have looked at the CCTV footage referred to by the landlord in their witness statement and it clearly shows patrons/people seated outside the common area which is supposed to be used as parking by all the tenants. This use by the tenant amounts to extending the area leased to him by the landlord. Despite receiring demand letters, the tenant did not present any response to the same and I have no reason to doubt the landlord.

17. On the issue of costs, the same are in this tribunal discretion under section 12(1) (k) of cap 301 Laws of Kenya but always follow the event unless for good reasons otherwise ordered. I have no reason to deny the landlord costs of the reference.

18. In conclusion, the final orders which commend to me in this case are as follows:a.The landlord’s notice to terminate tenancy dated March 25, 2021 is issued to the tenant herein is hereby approved/upheld.b.The tenant shall forthwith vacate from the suit premises situate on L R no 209/6911 Woodley, Nairobi city and in default shall be evicted therefrom by a licensed auctioneer appointed by the landlord who shall be provided with security by Ocs Kilimani police station or any other police station within whose jurisdiction the property is located.c.For avoidance of doubt, the temporary injunction orders earlier given in this matter are hereby discharged and/or vacated.d.Costs of the reference assessed at kshs 30,000. 00 are awarded to the landlord against the tenant.

DATED, SIGNED & VIRTUALLY DELIVERED THIS 17TH DAY OF NOVEMBER, 2022HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALJudgement read in the absence of the parties who were duly aware of the date.