[2024] KEBPRT 597 (KLR)

M’Thaka v Marian Estate Agency (Tribunal Case E018 of 2024) [2024] KEBPRT 597 (KLR) (12 March 2024) (Ruling)

Neutral citation: [2024] KEBPRT 597 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E018 of 2024

N Wahome, Member

March 12, 2024

[KENYA RE: TOWERS GROUND FLOOR]

Between

Josephat Kimathi M’Thaka

Tenant

and

Marian Estate Agency

Landlord

Ruling

1. This Ruling Relates to BPRT Case Nos. E015 of 2024 and E018 of 2024 which were with the concurrence convenience of the parties and with the leave of this court consolidated into one suit and ordinarily BPRT case No. E015 of 2024 would be the lead file after the consolidation.

2. However, this conduct of filing multiple suits on the some subject matter and between the same parties must be frowned on. It occasions waste of precious judicial time and has also the ability to trigger confusion in the administration of justice.

3. The suits herein were triggered by the notice of termination by the Respondent dated 17/11/2023. The same was to take effect on the 1st day of February, 2024. The same was said to be grounded on:-“i.Tenant has refused to pay rent. He has rent arrears of Kshs.38,000/-. Effort to recover the arrears has failed. He has also subletted the Business premises to another Tenant. I request the rent Tribunal Court and OCS Kakamega Police Station to order the Tenant to pay all Rent arrears and vacate the Business Premises”.

4. The notice also required the Tenant to within one month after receipt of the notice to notify the landlord in writing whether or not he could agree to comply with the notice as from the date of 17th November 2023.

5. From the record and materials placed before the court, it seems that the Tenant never responded to the notice as requested but decided to move the court by the reference dated 10/1/2024. The grievances by the Tenant were that:-“The Landlord has been harassing, intimidating me with threats of eviction by locking my business premises with all my business goods without an order from the rent Tribunal Court or any other Court of Law contrary to Cap. 301 Laws of Kenya. I request the Rent Tribunal Court and OCS Kakamega Police Station to order the Landlord to stop harassing me with threats of eviction and reinstate me back to the Business Premises”.

6. The above reference was filed in BPRT Case No. E015/2024 but inexplicably the Tenant filed case No. E018/2024 with the reference dated 17/1/2024 which did not raise any grievances nor seek for any reliefs from the court. The less said about this if at all it qualifies to be called so the better.

7. Together with the reference dated 10/1/2024, the Applicant filed the Notice of Motion application of even date. The application sought for the following releifs,-i.Spent,ii.That the Honourable court be pleased to order the Respondent/Landlord to immediately and unconditionally re-open the business premises.iii.This Honourable Court be pleased to order the Respondent/Landlord to pay Kshs.10,000/- per day being daily income from the business premises.iv.That the OCS Kakamega Police Station to take compliance of this orders.v.Costs of this Application be provided for.

8. The Applicant later on filed the further affidavit dated 2/2/2024 and the unsigned submissions dated 2/2/2024 but which I confirm to have perused and given due consideration in my determination.That Tenant’s Casei.The respondent had unlawfully locked down his business premises occasioning him losses estimated at Kshs.10,000/- per day totaling to Kshs.600,000/- for 2 months.ii.Efforts to engage the Respondent on settlement of the rent arrears at Kshs.38,000/- were ignored.iii.He had not sublet the demised premises and one Emmanuel Juma was his Agent/Employee.iv.His business was duly licensed and operated legitimate business only. He displayed single business permits and evidence of payment for the same.v.He has carried out major renovations at the premises which were dilapidated at a cost of Kshs.45,000/-.vi.Was willing to settle the rent in arrears on consideration of the losses suffered by himself and when the costs of renovations by him are also factored in.

9. The Respondent in response to the application and reference both dated 10/1/2024, he filed the Replying Affidavits dated 18/1/2024 and 8/2/2024 and the further affidavit dated 14/2/2024. All were sworn by one peter Juma Said to be an estate agent of the Respondent. The Respondent vouched for the legitimacy of the Tenancy notice and painted the Tenant as not being a man of honour who had misled this court to enjoy the orders so far on record.Landlord’s Casei.His termination notice dated 17/11/2023 was not objected to by the Applicant as required by the law and therefore took effect on the 1/2/2024. ii.The applicant owed Kshs.38,000/- in rent arrears and further in breach of the tenancy agreement, he had sublet part of the demised premsies to a 3rd party without his consent.iii.Applicant was running illegal business of gambling and his pool table business had not been issued with a single business permit for the years 2022 and 2023. iv.The single business permit produced in evidence in court belonged to one Alfred Oyalo and did not relate to the respondents premises.v.There was no evidence offered that the Applicant earned Kshs.10,000/- daily and had further failed to comply with the orders of this court and pay the rent in arrears.

10. The Respondent therefore asked the court to allow the termination notice dated 17/11/2023, order the Tenant to pay mesne profits from the effective of 1/2/2024 until he vacates the premises and costs of the suit.

11. In making my determination, I have considered the Respondent’s submissions dated 16/2/2024 and the case law cited and in particular the following cases,-a.Capital fish Kenya Limited v The Kenya Power and Lighting company Limited (2016) eKLR,b.Inder sing Limited v Startimes Media Company Ltd (2021) eKLR, andc.Mike Muli v Justus Mwandikwa Kilonzo and 4 Others (2021) eKLR which the Tribunal adopted the binding findings in Kasturi Ltd v Nyeri wholesalers Limited (2014) eKLR.

12. Having taken due regard and Considerations of the respective cases for both parties, am of the view that the issues for determination herein are the following:-a.Whether the Applicant’s application dated 10/1/2024 has merit.b.Whether the Landlords notice of termination dated 17th November 2023 is lawful.c.Whether the Landlord is entitled to the rent arrears and mesne profits claimed.d.Who should bear the costs of this suit.

Issue No. A- Whether the Applicant’s application dated 10/1/2024 has merit. 13. The Applicant has not denied that he owes KRS 38,000/- rent in arrears to the Respondent. There is further no denial that he was issued with the termination notice dated 17/11/2023. His only grievance is that the demised premises were locked up for 60 days against a daily income of Kshs.10,000/- causing him losses at Kshs.600,000/-.

14. The applicant also claimed that he had occasioned and/or effected renovations at the premises at the tune of Kshs.45,000/- to make the same habitable. He therefore asserted that the justice of the case was to allow him retain the Tenancy.

15. From the prayers in the Applicant’s Application and reference, the relief to have the demised premises re -opened is already spent if at all the same had ever been locked up. The only singular relief pending is for damages for 2 months at Kshs100,000/- per day for a total of Kshs.600,000/- for 6o days.

16. Therefore the case for the Tenant only turns on the question of the claimed damages and not on the legitimacy of the Termination notice by the landlord or the rent and mesne profits claimed.

17. I therefore and without much ado determine that the notice to terminate the tenancy dated 17/11/2023 was in total compliance with the law and in particular Sections 4,6 and 7 of the Act and Regulation 4(1) of the Regulations thereof. For clarity, Section 4(2) of the Act provides that:-“a landlord who wishes to terminate a controlled tenancy, or to alter, any term or condition in, or right or service enjoyed by the Tenant under, such a tenancy shall give notice in that behalf to the Tenant in the prescribed form."

18. Regulation 4(1) of the Regulation to the Act operationalize Section 4(2) of the Act by providing that:“A notice under Section 4(2) of the act by a landlord shall be in form A1 in the schedule to these Regulations”.

19. Those provisions call for strict compliance with the same by the landlord and I confirm that such compliance was effected. Section 7 of the act was further observed in the issuance of the Notice of termination in that it recognized the grounds under the Law for such action were duly observed. Section 7(1) (b) of the Act provides that:-“Grounds upon which a landlord may terminate a tenancy include that the Tenant has defaulted in paying rent for a period of two months after such rent has become due or payable or has persistently delayed in paying rent which has become due or payable”.

20. I note that the undisputed rent arrears was Kshs.38,000/- as at January, 2024. At the monthly rent of Kshs.8,000/- that was rent in arrears for four (4) months and fifteen (15) days. Sadly, despite the orders of this Honourable Court made on the 22/1/2024 and 8/2/2024, there is no evidence that the Applicant had paid the same at the time of writing this ruling.

21. The 2nd ground for termination was that the Applicant had sublet the premises without the consent of the landlord, that he also was running the business of pool table without a licence from the County Government of Kakamega and had also sublet a space which run a gambling business without a permit. To the landlord, this was in breach of the Tenancy agreement to the effect that the Tenant was required to complied with the law in running his business. Section 7(1)(c ) of the Act provides that:-“another ground of termination of tenancy is that the Tenant has committed other substantial breaches of his obligations under the Tenancy, or for any other reason connected with the tenant’s use or management of the premises comprised in the tenancy”.

22. The Tenant did not explain or at all attempt to explain what the gambling machines were doing in the demised premises. Why he had not met his obligations to run authorized businesses or get the Tenant’s consent to carryout the purported renovations or even sublet part of the premises. Clause (xii) of the schedule to the Act provides that the Tenant:“Shall not transfer, part with possession, or sublet the premises or any part thereof without the consent of the lessor, which consent shall not be unreasonably with held”.

23. In all, I determine that the notice of termination herein and dated 17/11/2023 has not been challenged or at all at the close of this case. I have also in view of the above analysis found that the same was compliant with the law. Having in essence disposed off issue no. B, I get back to issue No. A.

24. On this issue, I wish to refer to Section 107(1) of the Evidence act on the need to proof any claim made before court. The same provides that:-“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must proof that those facts exist”.In the case of Capital Fish Kenya Ltd v Kenya Power and Lighting Company Limited (2016) eKLR the Court of Appeal observed that:-“That being trite in law not only should a claim for special damages be specially pleaded, but it is incumbent upon the claimant to prove it, failure to prove disentitles a claimant to the award sought. And that is the case here. Although the plaintiff pleaded special damages, it did nothing to prove the same and so that claim is dismissed”.

25. I highly doubt that the Applicant earned Kshs.10,000/- per day or anything close to that amount. If true, he was then earning on average a whooping Kshs.300,000/- per month but still struggled to pay rent of only Kshs.8,000/- per month.

26. The applicant had been afforded time by the Landlord to pay the rent in arrears at Kshs.38,000/- from the evidence on record and twice by this court but was unable to comply. That depicts a person deeply struggling financially but still putting a brave face for the gallery.

27. I therefore do not find any merit in the Applicant’s entire claim and would dismiss the same. The reference being founded on the same quick sand, I would also dismiss the same in same terms with the application.

Issue No. C Whether the landlord is entitled to the rent arrears and mesne profits claimed. 28. The landlord’s claim of Kshs.38,000/- in rent arrears has not been denied at all. Indeed the Applicant admitted the same all through these proceedings. This court had also made orders on the 22/1/2024 and 8/2/2023 for payment of the same. I would therefore allow the claim of Kshs.38,000/- in rent arrears and mesne profits effective 1/2/2024 when the tenancy terminated until the applicant leaves the demised premises or is evicted from the same.

Issue No. D-Who should bear the costs of this suit. 29. Costs follow the event as provided for by the proviso to Section 27 of the civil Procedure Act. I follow that wisdom and award costs to the Respondent.

30. In the final analysis, the orders that commend themselves to me are the following:-i.That both the reference and Application dated the 10/1/2024 are dismissed.ii.That the notice of termination of Tenancy dated 17/11/2024 is declared lawful and took effect on the 1/2/2024. iii.That the Applicant is ordered to immediately vacate the demised premises or be evicted with the assistance of the OCS Kakamega Police Station.iv.The Landlord is awarded Kshs.38,000/- in rent arrears and mesne profits at Kshs.8,000/- effective the 1/2/2024 until the date the Applicant leaves the demised premises or is evicted.v.The Landlord is awarded Kshs.20,000/- as costs in the consolidated file being BPRT Case No. E015 of 2024. Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 12TH DAY OF MARCH, 2024. HON. NDEGWA WAHOMEMEMBERBUSINESS PREMISES RENT TRIBUNALRuling delivered in the absence of the parties though aware of the date.HON. NDEGWA WAHOMEMEMBERBUSINESS PREMISES RENT TRIBUNAL12/3/2024