[2022] KEBPRT 891 (KLR)

Muchiri v Gakuru (Tribunal Case E016 of 2022) [2022] KEBPRT 891 (KLR) (Civ) (4 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 891 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E016 of 2022

Gakuhi Chege, Vice Chair

November 4, 2022

Between

Isaac W. Muchiri

Tenant

and

Anna Wanja Gakuru

Landlord

Ruling

1. The Landlord herein served a tenancy notice dated February 10, 2022 seeking to terminate the tenant’s tenancy in respect of the suit premises with effect from May 1, 2022. The grounds cited in the tenancy notice are that the agreement expired in 2020 and the tenant had outstanding arrears of eight months totaling to Kshs 103,500/-.

2. Being opposed to the said notice, the tenant filed a reference dated April 7, 2022 pursuant to section 6(1) of Cap 301. The matter came up for hearing on May 24, 2022 when the tenant sought for time to settle the matter out of court. It was thereafter adjourned to June 24, 2022 for mention.

3. When the matter came up on June 24, 2022, the parties indicated that they needed two (2) weeks to conclude negotiations. As such the matter was fixed for mention on July 22, 2022.

4. On July 22, 2022, the landlord’s counsel indicated that they had filed an application dated July 8, 2022 which had been responded to by the tenant. The Tribunal directed the tenant to pay Kshs 60,000/- within 14 days through the landlord’s advocates. Both parties were ordered to file and exchange statements of rent account for the period in dispute together with any evidence of payment of rent. The matter was fixed for mention on August 5, 2022 to confirm compliance.

5. On August 5, 2022, the landlord’s counsel confirmed that the tenant had paid Kshs 60,000/- but was yet to file his rent account statement. The tenant stated that his shop had been closed from January to June 2022 and no rent was owing for the said period. This Tribunal directed the Respondent/Landlord to respond to the issues raised in the objection and tenant’s statement within 7 days. The landlord was directed to also file and serve submissions in respect of the application dated July 8, 2022 within 7 days and the tenant to thereafter file his submissions upon service. The tenant was directed to serve all the filed documents by close of business of that date and the matter was fixed for mention on September 14, 2022.

6. On September 14, 2022 when the matter came up for mention, both parties had complied with the directions of July 22, 2022 and the matter was fixed for ruling on October 19, 2022.

7. In her application dated July 8, 2022, the landlord seeks for an order that the tenant pays the rent arrears for the shop he occupies in plot No 169 “A” Kerugoya Town in Kirinyaga County amounting to Kshs 143,500/- and in default be forcefully evicted by the baliffs and OCS, Kerugoya Police Station to provide security during eviction. She also seeks for costs.

8. In her supporting affidavit of even date, the landlord deposes that the Respondent has been her tenant in the suit premises from January 1, 2017 paying a monthly rent of Kshs 10,000/-.

9. The tenant had been paying rent whenever due until May 2021 when he defaulted leading to accumulation of Kshs 143,500/- in rent arrears by July 8, 2022. As a result, the landlord served the tenant with notice to terminate tenancy dated February 10, 2022 marked ‘AWG1’.

10. Despite the landlord approaching the respondent to surrender vacant possession with or without the accrued rent arrears, he refused to comply. The landlord has as a result continued to incur losses thereby necessitating the said application.

11. The tenant filed a preliminary objection to the landlord’s application dated July 8, 2022 raising six grounds as follows:i.The application is premature and ill- advised and amounts to putting the cart before the horse as the alleged rent arrears in the termination notice are different from the application and are subject to the reference.ii.The Landlord has to show through evidence how the arrears of Kshs 103,500/- in the termination notice and Kshs 143,500/- in the application were arrived at as monthly rent is Kshs 10,000/- only.iii.The Landlord had categorically stated on June 24, 2022 that she did not want any negotiations with the tenant or any money from him when negotiations were suggested.iv.The tenant is willing to enter into serious and honest negotiations with a view to arriving at an amicable settlement on the entire dispute.v.The Landlord has been interfering with the tenant’s access to the premises intermittently by placing padlocks on the door leading to loss of business and income as well as loss of employment by the shop attendant.vi.The application is a gross abuse of court process and ought to be struck out and/or dismissed with costs.

12. The landlord filed a further affidavit sworn on July 15, 2022 in which she responds to the preliminary objection dated July 13, 2022 stating that the rent arrears in the tenancy notice was as at February 2022 whereas the amount in the application is the total arrears as at July 2022.

13. According to the landlord, the sum of Kshs 103,500/- was rent due as at February plus extra charge of Kshs 50/- daily on late payment agreed upon vide the agreement dated November 1, 2017. By then, the rent for the months of March to July 2022 at the rate of Kshs 10,000/- per month had not accrued. The total upon accrual of rent for the said months became Kshs 143,500/- before applying the late payment charges of Kshs 50/- per day. The landlord deposes that she agreed to forfeit the accrued rent but the tenant was adamant to give vacant possession.

14. The landlord is opposed to any deposit of rent into this Tribunal as it would amount to infringement of her right to rental income. She opposes reopening of the window for negotiations with the tenant.

15. The landlord denies locking the tenant’s business premises by placing an extra padlock on the door and cannot be blamed for loss of business or employment by the shop attendant. As such the preliminary objection is frivolous, vexatious and an abuse of court process which ought to be dismissed with costs.

16. The tenant filed a statement of rent account dated August 2, 2022 showing a payment of Kshs 60,000/- being the undisputed rent as ordered by the Tribunal on July 23, 2022. He states that the disputed rent in the sum of Kshs 83,500/- is the difference claimed by the landlord in her application dated July 23, 2022 but disputed by him as per the preliminary objection filed herein.

17. The tenant maintains that he has been ready to negotiate the disputed rent with a view to arriving at an amicable solution in the spirit of give and take failure to which the matter should proceed to be heard and determined by the Tribunal.

18. The parties were directed to file submissions and both complied. I shall consider the submissions together with the issues for determination.

19. Flowing from the pleadings, the following issues arise for determination in this case:-a.Whether the landlord is entitled to the reliefs sought in the application dated July 8, 2022. b.Whether the notice to terminate tenancy should be upheld or dismissed.c.Who is liable to pay costs of the reference?

20. The Tenant was served with a notice to terminate tenancy dated February 10, 2022 under section 4(2) of Cap 301 Laws of Kenya. The same was expressed to take effect on May 1, 2022. The grounds of termination set out in the notice are that the lease had expired in 2020 and the tenant had outstanding rent arrears of eight months.

21. I have noted that the said notice complies with section 4(2) of Cap 301, Laws of Kenya in that it is in the prescribed form.

22. The tenant submits that the said notice is invalid in law and ought to be struck out with costs as it lists grounds not contained in the relevant provisions and that only one ground may be used at a time. The law according to the tenant does not allow an omnibus termination notice to be relied upon or enforced. Only one ground is allowed to be cited and to the extent that two distinct grounds are cited, the notice is incurably defective. The notice is attacked as being ambiguous and lacking clarity and the focus required in law. The tenant’s counsel cites the case of Saheb v Hassanally [1986] KLR 371 where it was held that section 7 does not prohibit reliance upon alternative grounds of termination of tenancy but the landlord can only enforce one ground at a time and that where the landlord relies on more than one ground in the alternative, upon the tenant complying or refusing to comply with the notice he/she will be bound by the acceptance of any one ground or by refusal of all the grounds in the notice.

23. According to the tenant, the notice in the matter which relies on more than one ground in the alternative is void and of no effect on the authority of the said case and the landlord is bound by the tenant’s refusal of all the grounds in the notice and the same should therefore be struck out.

24. I have gone through the decision in Saheb v Hassanally (supra) and according to holding number one thereof section 7 of Cap 301 does not prohibit reliance upon alternative grounds but the landlord can only enforce one ground at a time and where the landlord relies on one ground in the alternative upon the tenant complying or refusing to comply with the notice, the landlord will be bound by the acceptance of any one ground or by refusal of all the grounds in the notice.

25. The basis of the said decision is that the landlord therein had on one hand sought to terminate the tenant’s tenancy and in the same notice to alter terms of tenancy by way of increment of rent to Kshs 3500/-. This is what the court held to be improper.

26. In the instant case, the landlord only seeks to terminate tenancy and not to alter terms of tenancy. Although the first ground is not among those listed under section 7 of Cap 301, the Act does not purport to restrict reliance on any other ground not set out therein as the words used in subsection (1) are in the following terms:-“Where under section 4 of this Act served a notice of termination of a controlled tenancy on the tenant, the grounds on which the landlord seeks to terminate such tenancy may be such of the following grounds as are stated in the aforesaid notice”.

27. It is my view that a tenancy can be terminated or altered not only on the grounds stated under section 7 but also on other grounds that are analogous to those specified therein. It is therefore my view that a termination can be based on the ground that the term of a tenancy has come to an end and has not been renewed by the parties. This in no way means that the ground cited in the landlord’s notice should succeed. The landlord having admitted to have continued to receive rent after the initial period of three (3) years expired on December 31, 2017 created a periodic tenancy under section 60(2) of the Land Act, 2012 which is controlled. The said ground therefore fails.

28. In regard to the second ground, the landlord states in the tenancy notice that the tenant was in rent arrears of eight months totaling to Kshs 103,500/-. The landlord contends in her further affidavit that the said amount constitutes 8 months rent upto February 2022. The tenant has not provided any evidence to show that he had paid rent for the said period of eight months.

29. Section 108 of the Evidence Act, cap 80 Laws of Kenya provides as follows:-“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side”.

30. In this matter, the landlord has explained how she arrived at the sum of Kshs 102,500/- in the tenancy notice and Kshs 143,500/- in the application. The tenant on July 29, 2022 paid Kshs 60,000/- being the amount admitted. This is equivalent to six (6) months rent. He has not exhibited any other payment receipt in his statement of rent account dated August 2, 2022. It is not enough to state that the sum of Kshs 83,500/- is disputed rent arrears without showing how he has been paying rent.

31. The Landlord explained that the sum of Kshs 50/- per day is chargeable for any overdue rent as per the tenancy agreement exhibited herein under clause 5 thereof. Despite the agreement having not been renewed, the terms thereof continued to be applicable under section (60)(1) of the Land Act, 2012 which stipulates as follows:-"i.If a lessee remains in possession of land without the consent of the lessor after the lease was expired, all the obligations of the lessee under the lease continue in force until such time as the lessee ceases to be in possession of the land”.

32. The tenant has submitted that the issues raised in his preliminary objection must of necessity be subjected to a full hearing. Section 9(1) of Cap 301, Laws of Kenya provides as follows:“(1)Upon a reference, a Tribunal may, after such inquiry as may be required by or under this Act or as it deems necessary:-a.Approve the terms of the tenancy notice concerned, either in its entirety or subject to such amendment or alteration as the Tribunal thinks just having regard to all the circumstances of the case orb.Order that the tenancy notice shall be of no effect.c.and in either case make such further or other order as it thinks appropriate”.

33. The word ‘inquiry’ as used in section 9(1) of Cap 301 above in my view does not entail a normal hearing by way of viva voce evidence and is used in the same context as the term investigate under section 12(4) of Cap 301. The latter word was considered in the case of Choitram &othersv Mystery Model Hair Saloon (1972) EA 525 at page 530 letter B-C as follows:-“The term ‘investigate does not necessarily imply a hearing”.

34. I have looked at all the materials placed before me and I am convinced beyond any peradventure that there is sufficient evidence to conclude that the tenant was in rent arrears of Kshs 103,500/- as at the date of issuance of the tenancy notice subject matter of the reference. Having failed to pay rent for more than two (2) months as stipulated under section 7 (1)(b) of Cap 301, the landlord was entitled to terminate the tenancy. As such the tenancy notice ought to be upheld.

35. As regards the rent arrears, I find that the tenant was truly indebted to the landlord in the in the sum of Kshs 143,500/- as prayed in the application as at July 8, 2022 out of which the tenant paid Kshs 60,000/- to leave a balance of Kshs 83,500/- which continues to accumulate at a rate of Kshs 10,000/- per month from August 2022. The landlord is in addition entitled to charge Kshs 1500/- per month as agreed penalty from March 2022 to date which totals to Kshs 12000/-. The amount due to the landlord as at October 31, 2022 is Kshs 125,000/- which I shall order the tenant to make good.

36. As regards costs, the same are in the Tribunal’s 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.

37. In conclusion, the final orders which commend to me in this case are:-i.The Landlord’s notice to terminate tenancy dated February 10, 2022 served upon the tenant is hereby approved and the tenant shall vacate from the suit premises situate on plot No 169’A’ Kerugoya Town Kirinyaga County forthwith and in default shall be evicted therefrom by a licenced Auctioneer who shall be accorded security by the OCS, Kerugoya Police Station.ii.The Landlord’s application dated July 8, 2022 is hereby allowed with amendment of the amount due as rent arrears to read Kshs 125,500/- as at October 31, 2022. iii.The landlord shall be at liberty to break into the suit premises in the presence of OCS Kerugoya Police Station should the tenant fail to voluntarily deliver vacant possession thereof.iv.The landlord’s costs of the suit are assessed at Kshs 30,000/- against the tenant.It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 4TH DAY OF NOVEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL