[2022] KEBPRT 244 (KLR)

Naipanoi t/a Naipanoi & Mungai Advocates v Nenkai Investement Limited & another (Tribunal Case E192 of 2022) [2022] KEBPRT 244 (KLR) (Civ) (8 July 2022) (Ruling)

Neutral citation: [2022] KEBPRT 244 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E192 of 2022

Gakuhi Chege, Vice Chair

July 8, 2022

Between

Florence Naipanoi t/a Naipanoi & Mungai Advocates

Applicant

and

Nenkai Investement Limited

1st Respondent

Ann Karanja

2nd Respondent

Ruling

1. The tenant filed a complaint under section 12(4) ofcap 301 on March 2, 2022 to the effect that the landlord had increased rent illegally and refused to share with her the tenancy agreement.

2. The tenant also filed a motion dated February 24, 2022 supported by her affidavit of even date seeking restraining orders against the respondents from evicting her and increasing rent or in any other manner interfering with her occupation and lawful enjoyment of the suit premises.

3. Interim orders were issued on March 3, 2022, pending hearing interpartes. On January 5, 2022, the tenant received a notice of rent increment of the same date by 10%.

4. The tenant requested for a copy of tenancy agreement which was denied. She was the only one whose rent was increased. It is the tenant’s case that the respondents were harassing, intimidating and discriminating against her and as a result she had notified them of her intention not to comply with the notice of rent increment.

5. According to the tenant, the respondents wanted to stop her from lodging complaints with the management whenever the agent failed to provide basic utilities like access to the toilet by the tenants by either locking the toilets or closing them for renovation without notice or provision of alternative facilities as evidenced by annexure ‘FN3’.

6. The tenant deposes that she always pay rent and utility bills religiously on time and had no arrears. The notice of increment of rent is marked ‘FN-1’.

7. On the other hand, the landlord filed an affidavit headed “supplementary affidavit” though in true sense is a replying affidavit by Martha Pendo sworn on May 9, 2022 which may be summarized as follows:-(i)That there are additional affidavits by Paul Waruta Wangati and John Kolesh filed without leave since they are not parties to the suit.(ii)New issues are raised in the further affidavit of tenant whose contents depart from the original complaint.(iii)The landlord seeks to increase rent by 10% as agreement dated November 1, 2020marked MP-1. (iv)The increment is annual and was only demanded in accordance with the agreement.(v)The landlord denies any discrimination against the tenant.(vi)The landlord denies allegations of harassment.(vii)The applicant has not shown any basis in law, fact or equity upon which the Tribunal can exercise discretion in her favour.(viii)The landlord denies closing the toilets and denies altering the standard lease.(ix)The tenant is rude, harasses other tenants and the management of the landlord.(x)The landlord attaches several documents in opposition to the application. The documents are marked ‘MP-1’ to ‘MP4’ and seven affidavits by other persons not party to the instant proceedings.

8. The tenant also filed a further affidavit sworn on April 7, 2022 in response to the replying affidavits dated March 15, 2022 which I have not found in the court record. It raises issues which were not pleaded in the original complaint and application.

9. The tenant denies that the lease agreement has a rent increment clause by a minimum of 10%. She states that the lease agreement was edited to include a fee of kshs 10,000/- and that she was denied a copy of the original document.

10. Although the parties were directed to file submissions, none of them complied. I shall therefore rely on the pleadings as filed.

11. The issues for determination in this case are:-(a)Whether the landlord is entitled to increase rent by 10% as sought herein.(b)Whether the tenant is entitled to the reliefs sought in the reference and application.(c)Who is liable to pay costs?

12. The relationship between the parties herein is founded the tenancy agreement dated November 1, 2020 marked ‘MP-1 attached to the landlord’s replying affidavit. The lease is for a period of 5 years, 3 months from November 1, 2020. The monthly rent is kshs 10,000/-. It contains a termination notice of one (1) month at clause 14.

13. At clause 20(L), the said tenancy agreement provides as follows:- “ The rent is to review yearly for the rest of the lease period and shall be at a minimum of 10% increment”.

14. The tenant denounces the agreement on the basis that the same was edited to include a fee of kshs 10,000/- and that she was denied a copy of the original document. She states that she read the lease agreement well and internalized the contents therein and there was no provision stipulating the increment of rent by a minimum of 10%.

15. The tenant relies on her annexure ‘FN-1’ being a notice of increment of rent dated January 5 which states that “The rent is subject to be reviewed annually”. The tenant argues that this shows that there was editing of the original agreement.

16. I have looked at the agreement and I am unable to see how the allegation of editing can be discerned therefrom. The tenant has not exhibited a different tenancy agreement which does not contain the impugned increment clause of 10%. I am afraid that she was under legal duty to prove the alleged editing under section 107(1) of the Evidence Act which provides as follows:-“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.The tenant has failed to discharge the burden of proof espoused under the said provision.

17. Section 109 of the Evidence Act, provides that:-“The burden of proof as to any particular fact lies on the person who wishes to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person”.

18. Having held that the tenant was unable to demonstrate that the tenancy agreement was edited, I am unable to hold that she has discharged her burden under section 109 of the Evidence Act.

19. I have looked at several affidavits sworn by other tenants in the same building where the suit premises are situate and all of them paint a very positive picture of the respondents. I have not seen any affidavit by any other tenant to demonstrate allegations of closure of toilets and other issues affecting her tenancy that would require a full hearing. Some of the tenants are advocates of the High Court of Kenya just like the applicant and I do not think that they would go into swearing affidavits to oppose the reference if what the tenant has alleged against the respondents was true.

20. The tenant being an advocate of the High Court of Kenya must have known the type of agreement she was entering into. She cannot be treated like a lay person. She cannot have signed an agreement without retaining a copy and come to court to allege that it was edited. She has to live by the agreement as I have no authority to make a new agreement for the parties.

21. In this regard, I wish to rely on the decision in the case of Jiwaji and Others – vs- Jiwaji and another (1968) EA 547 at page 554 where it was held as follows:-“………Where there is no ambiguity in an agreement, it must be construed according to the clear words actually used by the parties, and it would be quite wrong to adopt a different construction or to imply a term to the contrary effect”.

22. It must by now be clear that I am not convinced that the tenant is entitled to the reliefs sought in the complaint and the application. The same are candidates for dismissal.

23. In regard to costs, the same are in the court’s discretion and always follow the event unless for good reasons otherwise ordered. I have no good reasons to deny the respondents costs.

24. In conclusion therefore, the following final orders commend to me:-i.The application dated February 24, 2022 and the reference of March 2, 2022 is hereby dismissed with costs.ii.The landlord is entitled to increase rent in terms of the tenancy agreement dated November 1, 2020. iii.The respondents are entitled to kshs 20,000/- as costs of the case against the tenant.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF JULY 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Miss Mungai for the tenant/applicantNo appearance for the landlord