[2024] KEBPRT 334 (KLR)

Mueni v Waweru & another (Tribunal Case E306 of 2023) [2024] KEBPRT 334 (KLR) (27 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 334 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E306 of 2023

CN Mugambi, Chair

February 27, 2024

Between

Regina Mueni

Tenant

and

Lawrence Waweru

1st Landlord

Joseph Ndichu

2nd Landlord

Ruling

Introduction 1. The Landlord’s notice to terminate tenancy dated 23. 1.2023 is brought on the grounds that,“Non-payment of rent for one unit since the year 2015 up to date.”

2. The tenant in opposition to the notice to terminate her tenancy filed a reference by tenant to the Tribunal dated 23. 3.2024.

3. The matter eventually proceeded for hearing on 17. 10. 2023 and I proceed to summarize the evidence of the parties as follows;-

The Landlord’s Case 4. The evidence in support of the Landlord’s notice to terminate tenancy was led by Mr. Joseph Ndichu Gachuhi whose evidence in chief may be summarized as follows;-a.That one Mr. Lawrence Waweru is his nephew and he is the one who receives rent for the premises.b.That the witness served the tenant with a notice to terminate tenancy on the grounds of non-payment of rent since 2015. c.That the tenant had initially taken up two rooms which she uses for residential purposes.d.That the last time the tenant paid rent for the shop was in 2021 and has not paid any rent for the extra room since 2014. e.That the tenant has also connected her own electricity in the premises.f.That the witness is not interested in the tenant’s shop but only in the extra room, which the witness calls the back room.g.That the witness now wants the rent paid at the rate of Kshs. 3,500/= from April 2015.

5. Upon Cross Examination by the Tenant, the witness’ response may be summarized as follows;-a.That the tenant came into the “shop” premises in the year 2014. b.That the witness was not there when the tenant was given the premises by Mr. Lawrence Waweru.c.That the tenant has been paying rent at Kshs. 3,500/= per month.d.That the tenant has no agreement with the witness though he is the tenant’s landlord.e.Tha the agreement does not provide for two rooms but only provides for “assistance and rent of Kshs. 3,000/=.f.That on the following dates, Mr. Lawrence Waweru received rent via mpesa from the tenant:Date Amount (Kshs.)11. 4.2022 10,622. 0016. 1.2022 3,567. 0014. 1.2023 3,567. 0014. 2.2023 3,567. 0013. 3.2023 3,567. 0014. 4.2023 3,567. 0014. 5.2023 3,567. 00(g)that the witness did not have any receipts(h)That there have been attempts to have the tenants vacate the premises in the past.

6. The witness further told the court that he has never received any rent from the tenant even for a single day.

The Tenant’s Case 7. The tenant, Regina Mueni’s evidence in opposition to the notice to terminate tenancy and in support of her Reference may be summarized as follows:-a.That she has received a notice to terminate her tenancy.b.That Mr. Ndichu is not her landlord.c.That it was Lawrence Waweru who approached her and requested her to take up the premises paying rent of Kshs. 3,000/= in 2014 and which rent was later increased to Kshs. 3,500/=.d.That she has always paid her rent in good time and Lawrence Waweru has not complained that the tenant owes him any rent.e.That this Tribunal has no jurisdiction over the premises as it is residential.f.that the security of the tenant’s business requires that she reside therein.g.That in support of her case, the tenant produced an agreement dated 12. 8.2014 and mpesa statements dated 12. 6.2019, 11. 4.2022, 16. 1.2022 and 2023 (date not provided).h.that the tenant disagrees with the Inspection report produced in Case No. E275 of 2022 in as far as it, she was only given one room which according to the tenant, she was given two rooms.

8. Upon Cross Examination by the Counsel for the landlord, the tenant’s responses may be summarized as follows;-a.That in the year 2014, the tenant was given the suit premises by Lawrence Waweru.b.That Ndichu is the son of the owner of the premises.c.That Ndichu has never requested the tenant to pay rent to Lawrence Waweru.d.That in BPRT Case No. 74 of 2018, the tenant sued Ndichu because he had destroyed her property.e.That in the court order dated 15. 10. 2018, the Respondents were ordered to accept rent.f.That the tenant has no evidence that she paid any rent in the year 2018. g.That she agrees with the Inspection report done in the year 2018. h.That for the year 2019, there is evidence that the tenant paid Kshs. 13,500/=. For the years 2020 and 2021, the tenant has no evidence of payments. But for the year 2022, the documents in court show the tenant paid Kshs. 10,600/= and Kshs. 3,567/=.i.That the dates for the payment given by the tenant are mere samples as she had not carried with her all her documents.j.That the tenant thinks she is being discriminated against.k.That the tenant is not ready to move out as she cannot secure an alternative premises.

9. After the cross examination of the tenant, the court ordered the tenant to file a statement of accounts detailing all rent payments from the year 2015. The parties were, on, 1. 11. 2023 further ordered to file separate accounts with their submissions.

The Landlord’s submissions 10. According to the landlord’s submissions, the tenant owes the landlord Kshs. 336,000/= for the extra room at the rate of Kshs. 3,500/= per month for eight years and Kshs. 65,385/= in rent arrears for the other room.

11. The landlords urge the court to find that the relationship between the parties has broken down and that the tenant has brought the landlords to court over rent arrears complaints purely to mix-up figures and refuse to vacate the extra room.

12. It is the landlord’s further submission that the rent between the two parties was calculated and they urge the court to rely on the calculations that they have attached.

13. The landlords also submit that once the issue of non-payment of rent has been raised, it is up to the tenant to prove rent payments.

The Tenant’s submissions 14. The tenant has submitted that she has been a tenant of the 2nd Applicant paying a monthly rent of Kshs. 3,000/= since 2014 but which was increased to Kshs. 3,500/= in the year 2018.

15. The tenant submits that the notice to terminate tenancy dated 23. 1.2023 was drawn and issued by Joseph Ndichu Gachuhi and to whom the tenant has never paid rent neither has the tenant have any tenancy relationship with the said Joseph Ndichu Gachuhi.

16. The tenant also submits that the notice of termination of her tenancy is not either in good faith as she does not owe the landlord any rent and neither does she occupy two units. (The tenant seeks to rely on the two Inspection reports done in the years 2018 and 2022).

17. That the tenant has all along occupied the same space she took up as per the agreement with the 2nd agreement.

18. That the tenant is not in any rent arrears.

19. That the parties did not agree on any reconciled accounts.

Analysis and determination 20. The only issue I have to determine in this suit is whether the landlords/Applicants have established and therefore proved by way of evidence, the ground for termination of tenancy set out in the notice to terminate tenancy dated 23. 1.2023, which is;“Non-payment of rent for one unit since the year 2015 up to date.”

21. The Rental House Agreement dated 12. 8.2014 states that the tenant was to move to the 2nd Landlord’s rental house and the said landlord will be the one to move the tenant out of the premises if there would be a good reason. For clarity’s sake, the tenant was to move her business to the 2nd landlord’s rental house (sic). The agreed rent as per the agreement was Kshs. 3,000/=. This is increased to Kshs. 3,500/= in the year 2018.

22. According to the tenant, she has always occupied the whole of the premises as per the agreement of 12. 8.2014 while according to the landlords, the tenant had taken up only one room at Kshs. 3,000/= and later Kshs. 3,500/=. But later took up an extra room therefore doubling her rent from the year 2015. It is not clear from the testimony of the landlords how the tenant took up the extra room. I have perused the affidavit of John Ndichu Gachuhi sworn on 7. 4.2021 in an attempt to find out the explanation as to how the tenant came to take up the extra room and according to the said 1st landlord’s affidavit, the following paragraphs of the said affidavit are relevant; -Para 3:That the Defendant initially rented one unit at the premises at a monthly rate of Kshs. 3,500/= as per the agreement made during the commencement of her tenancy.Para 4:That due to ill intention of the tenant, she managed to frustrate and eventually chased away the business neighbor one Mr. Peter Mwamba who was conducting butchery business.Para 5:That the tenant immediately occupied the said unit upon chasing her neighbor without any consent.Para 7:That I had no problem her occupying the two units and instead I asked her to be paying double of what she used to pay before.

23. If the 1st landlord is to be believed, it would appear that the tenant did not take up the premises pursuant to any lease agreement between the parties as the 1st landlord clearly states that the tenant chased away the tenant who was occupying the extra room subject matter of this dispute. It cannot therefore be said that the rent payable for the extra room was Kshs. 3,500/= as alleged by the 1st Respondent, as the rent for the premises in the agreement of 2014 was Kshs. 3,000/= anyway. There is no evidence on the record to show that any rent was agreed upon for the extra unit as alleged by the 1st landlord and it is more probable than not that the tenant actually took up the premises as one business unit in the year 2014; and has been paying for the same as such.

24. The Inspection report received in court on 23. 11. 2018 states as follows:-“The Rent Inspector (sic), the premises is a single plot with two doors at the front and one at the back; the front two doors are clearly labeled as per the photos attached. The tenant is operating the (sic) general merchant shop and she also resides at the same place where she accesses using the back door. In front of the premises, there are two metal well (sic) labelled metal doors while at the back, there is only one door, the tenant operations the shop one on the right where it has access to the other room.”

25. The Inspection report of 7. 7.2022 at paragraph 3 thereof, the report states;“Upon inspecting the premises, I noted that the landlord has rented out one unit of the business premises and the tenant occupies the 2 units which are separated by a concrete permanent wall which divides the 2 units, one unit is used as the business premises while the other unit is used as a residential house. Each unit has a door at the front side and one door at the rear side which is used to access both units as the common door for both units.”

26. It is clear from both reports that the suit premises has two doors in the front, is divided into two and has a common entrance from the back. I am in these circumstances persuaded that the tenant has been operating the suit premises as one business unit though there is a separation of the spaces inside.

27. I am also in the circumstances not able to discern two different tenancies for two units as submitted by the Landlords and I have indicated elsewhere in this Ruling, I have not seen any evidence of a lease agreement written or oral for the so called extra unit.

28. Does the tenant owe the landlords any rent arrears?In the course of the proceedings, the parties herein were ordered to file their statements of accounts. None of them filed any statements and I am unable to discern from the material placed before me, whether or not any rent is owed. The tenant has attached to her submissions a bundle of documents while the landlord has put forth a narration in their submissions that does not amount to a statement of account. Unfortunately for both parties, none of the documents presented are helpful to the Tribunal in determining the rent arrears of any one indeed owed.

29. It is the landlords’ assertion that the tenant has not paid rent for the extra room since 2015. I have already found that indeed the lease agreement of 21. 8.2014 does not define the space occupied by the tenant to be one room and under which the tenant is alleged to have occupied an extra room. The tenant has been paying the rent of Kshs. 3,500/= for the “space she occupies”; which I deem to be the entire space she occupies. This being the case, I am unable to find that she owes any rent for an extra room.

Disposition 30. In the final analysis, I do not find the ground set forth in the termination notice dated 23. 1.2023 as proven and the said notice shall be of no effect.

31. Pursuant to the provisions of Section 9(3) of Cap 301, the landlord is hereby allowed to issue another tenancy notice if he so desires after the expiry of thirty (30) days from the date of this Ruling.

32. Each party will bear their own costs.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY OF FEBRUARY 2024. HON. CYPRIAN MUGAMBICHAIRPERSON27. 2.2024In the absence of Ms. Mueni – the tenant/Respondent- present in personIn the absence of the Respondents/Applicants