[2021] KEBPRT 115 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 40 OF 2018 (NYERI)

NANCY NYAWIRA MWANGI

T/A DIVINE NURSERY.......................................APPLICANT/TENANT

VERSUS

JOSEPH WAWERU MAINGI ................... RESPONDENT/LANDLORD

JUDGEMENT

1. The relationship between the two parties herein begun with a lease agreement which is undated but expressed to take effect on 1st January 2021 for a period of 5 years in respect of land parcel no. Nyeri Municipality Block 2/350.

2. The agreed monthly rent was Kshs.20,000/- payable in advance not later than 5th day of the current month with a rider that failure to meet the conditions set therein would result to immediate termination of the lease.

3. The lease incorporated a rent escalation Clause of 20% after every two (2) years. A three (3) month’s rent was payable as deposit security to be held until expiry of the tenancy.

4. The user of the premises was expressed to be nursery school. The internal partition if any according to clause 9 of the lease agreement was to be done by the lessee with good materials approved by an architect or authorized agents with approval of planning authorities of the municipal.

5. By a motion dated 28th September 2018, the tenant moved this tribunal seeking for restraining orders against the Landlord from interfering with her peaceful occupation of the suit premises or the school business. She further sought that this Tribunal determines or vary the rent payable and order necessary adjustments.

6. The said application was partially determined ex-parte after this Tribunal granted prayers 1,2 and 3 thereof thereby remaining with payers 4 and 6 thereof.

7. Through a replying affidavit sworn on 1st November 2018, the landlord opposed the said application stating that the lease in respect of the suit premises had expired without any renewal and the tenant was thus a trespasser on the premises.

8. The landlord refers to a second agreement dated 30th March 2015 which extended the initial lease by a period of two years with effect from 1st April 2015 at an agreed monthly rent of Kshs.25,000/- payable on or before 10th day of every month. The agreement is between the landlord’s agents Highrise Commercial Agency and the tenant.

9. The tenant filed a further affidavit sworn on 1st December 2018 stating that she was leased a vacant plot to construct a nursery school which costed her Kshs.850,000/- as per the valuation report attached thereto.

10. The tenant deposes that she was forced to sign the new agreement on 30th March 2015 with the agent under pressure but immediately complained as the agreement was defective for omitting to indicate that she had leased a vacant plot to construct a nursery school which she financed. She further states that there was no agreement to raise rent to Kshs.25,000/- which remains disputed as no notice was served to that effect.

11. It is further deposed that on 24th September 2018, she met the school office door locked and after making many calls, the landlord refused to answer. She stayed for 4 weeks without operating in the office and all goods stored there got “rotten”.

12. She was unable to pay rent owing to parents losing trust and pleaded to pay the rent balance by February 2019.

13. According to the tenant, the Landlord constructed three (3) rental rooms within the school compound in 2014 without giving her notice as a result of which she suffered interruptions and noises until September 2014 from the construction.

14. On enquiry, the landlord informed the tenant that she could only rent rooms constructed by him contrary to their earlier mutual agreement.

15. In January 2015, the landlord constructed the storey building which affected peace of the children schooling in the compound and at the same time engaged HighRise Commercial agency who changed rent to Kshs.25,000/- with effect from 1st April 2015 forcing her to sign the defective agreement.

16. The tenant deposes that she was paying the new rent with a lot of pressure based on “abuse, threats and rude words” from the landlord and agents who did not issue receipts.

17. The landlord refused to make a new agreement to replace what the tenant refers to as the “defective” one.

18. By a motion dated 28th May 2020, the landlord is seeking for lifting of the order issued on 10th September 2019 restraining him from going on with the construction work he had initiated.

19. On 18th March 2021, this Tribunal directed that the complaint proceeds by way of viva voce evidence with the tenant beginning.

20. The tenant produced the initial lease agreement of 5 years as P. Exhibit 1. She repeated the contents of her various affidavits stating that she had leased the whole plot and claimed the structures in her use to be owned by her.

21. She stated that she only uses a quarter of the plot and therefore the landlord is only entitled to rent based on the portion occupied.

22. She produced as P. Exhibit 2 valuation report showing the value of the developments to be Kshs.850,000/-. She claims refund of Kshs.60,000/- paid as rent security deposit.

23. Although the Tribunal had stopped construction, the tenant testified that the landlord completed the same. She claims compensation for the improvements made in the premises.

24. She further seeks for one (1) year to move out and admit having been served with notice to terminate tenancy in September 2019. She wants the said notice to take effect after one (1) year of being compensated for the claimed improvements.

25. The tenant admitted being in arrears of rent since January 2020 stating that she had only deposited Kshs.40,000/-. The rent arrears by the time of her testimony was Kshs.310,000/-.

26. She however prays for reassessment of rent as she was not using the whole plot but only a quarter thereof. She prays that the amount owing as rent ought to be offset against the claimed compensation.

27. In cross-examination, the tenant confirmed that the lease agreement gives her the right to use the suit premises as a nursery school and did not provide that the same was without structures. She stated that she did not have any building plans in court nor bills of quantities for the structures claimed to have been erected by her.

28. The tenant stated that she took the premises in 2012 and the residential premises by the landlord were erected in 2014. She claimed to have constructed the structures housing the nursery school before 2012 prior to entering into the lease agreement.

29. She admitted having been ordered to pay rent by an order issued by the Tribunal on 29/3/2019 which she failed to do owing to challenges she faced. The premises according to her were not suitable for her business and she needed time to move out.

30. She confirmed having been served with notice to vacate the suit premises to allow the landlord develop the property.

31. After close of the tenant’s case, the landlord also testified without calling any witness. He stated that the tenant was in rent arrears of over Kshs.500,000/- having failed to pay rent since January 2020. He stated that the tenant should pay rent and vacate the suit premises.

32. The landlord denied having given authority to the tenant to develop the suit property and claimed to have constructed the classrooms used by the tenant.

33. He was categorical that he had no agreement with the tenant authorizing her to construct anything on the suit property. He denied that the tenant was paying rent for the whole plot.

34. The landlord claimed that all the structures on the suit premises belong to him having constructed them before entering into the lease agreement with the tenant.

35. He denied that the internal partitions referred to in the initial lease agreement was in reference to the perimeter fence challenged the tenant to produce evidence on how she constructed the structures claimed by her.

36. The landlord confirmed that the tenant failed to pay rent and rushed to court for protection when he attempted to enforce payment. He denied having caused failure by tenant to pay rent.

37. Both parties did not file submissions and sought to rely on evidence tendered in the case.

38. I am now called upon to determine the following issues:-

(a) Whether the tenant is entitled to compensation for structures claimed to have been constructed by her in the suit premises.

(b) Whether the Landlord is entitled to vacant possession of the suit premises.

(c) Who is liable to pay costs of the reference?

39. As served above, the relationship between the two parties was reduced into a written lease agreement which though undated commenced on 1st January 2012 for a period of 5 years. The user of the premises was as a nursery school. The agreement does not state that the tenant had either erected the structures intended for use as nursery school neither did it authorize her to put up structures thereon.

40. Instead, Clause 9 thereof provided that internal partitions (if any) were to be done at the cost of the lease and shall be of good materials. Clause (b) thereof provided that “the lessee shall not carry out or permit to be carried out any conditions, alterations or modifications to the demised premises or part thereof without the consent in writing to the lessor”.

41. It is inconceivable that the agreement would make such provisions if the tenant was the owner of the structures erected on the suit premises. Challenged to produce evidence on how she carried out the constructions, the tenant did not provide any as a basis for compensation.

42. There is no evidence before me to demonstrate that the buildings erected on the suit premises and used as a nursery school own by the tenant were constructed by her and as such, there is no basis to make an order for compensation in her favour.

43. I did not believe the tenant when she stated in cross-examination that the partitions referred to in clause 9 of the initial lease agreement were in respect of the perimeter wall/fence. She did not strike me as a truthful witness during the hearing.

44. The duty of this court is to interpret contracts or imply terms that did not emanate from their negotiations. I will therefore not imply terms that are not borne out of the written agreement. In that regard, I rely on the court of appeal decision in the case of National Bank of Kenya Ltd – vs- Pipe Plastic Sarkolit (k) Ltd & Another (2001) e KLR at page 4/5 where it was held as follows:-

“ A court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved”.

45. Section 97 (1) of the Evidence Act, Cap 80 provides as follows:

“ When the terms of a contract or of a grant or of any other disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms’ of such contract, grant or other disposition of property or of such matter except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of this Act”.

46. In view of the said superior court’s decision and section 97 of the Evidence Act, I am unable to hold that the structures claimed by the tenant were erected by her since the initial agreement points to the ownership thereof to be the landlord’s.

47. I also find that there being no dispute that the tenant has not paid reserved rent except a sum of Kshs.40,000/- since January 2020 coupled with the agreement dated 30th March 2020 between her and the Landlord’s agent providing for agreed monthly rent of Kshs.25,000/-, the landlord is entitled to payment of rent at that rate.

48. Indeed no evidence of coercion, duress, fraud or undue influence has been tendered by the tenant to show that the second agreement is invalid and I uphold it.

49. Finally, the tenant admitted having been served with notice to vacate the premises although the same was not produced by either of the two parties. She prays for time to give vacant possession despite not being able or paying any rent.

50. I have noted that no reference was filed to challenge the landlord’s notice and his entitlement to possession has not been disputed.

51. In the premises, I proceed to make the following final orders:-

(a) The tenant’s application dated 28th September 2018 is hereby dismissed.

(b) The orders given pursuant thereto are hereby discharged and/or vacated forthwith.

(c) The tenant is disentitled to the claimed sum of Kshs.850,000/- for alleged improvements of the suit premises.

(d) The landlord is entitled to recover rent arrears of Kshs.25,000/- per month with effect from 1st January 2020 in terms of the agreement dated 30th March 2015.

(e)The landlord is entitled to vacant possession of the suit premises with effect from 1st January 2022 and the tenant is directed to vacate therefrom or be evicted by a licensed Auctioneer who shall be provided with security by OCS Nyeri Police Station.

(f) The costs of the reference is granted to the landlord.

It is so ordered.

DATED, SIGNED & DELIVERED VIRTUALLY THIS 19TH DAY OF NOVEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Muchiri for the Landlord

Tenant in person.