[2024] KEBPRT 130 (KLR)

Net Gas & Energy Limited v Healthcare & 9 others (Tribunal Case E568 of 2023) [2024] KEBPRT 130 (KLR) (4 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 130 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E568 of 2023

N Wahome, Member

January 4, 2024

Between

Net Gas & Energy Limited

Landlord

and

Rombe Healthcare

1st Tenant

All Purpose Shop

2nd Tenant

Joab Ashitiba

3rd Tenant

Am Ohc Church

4th Tenant

Christ Kingodom Ambassador

5th Tenant

Wainaina Caro

6th Tenant

Lyton Investment

7th Tenant

Steve Electronics

8th Tenant

Alice Embroidery

9th Tenant

Joseph Maina

10th Tenant

Ruling

1. The Landlord/Applicant approached this tribunal by an application dated 6/6/2023. The same was brought under certificate of urgency and was said to be founded under section 7 (1)(b) and 12 (1) (e) of the Landlord and Tenant Shop Hotels and Catering Establishments Act) cap. 301 (hereafter referred to as “The Act”.

2. The application sought for several reliefs among them that,a.“The respondents/Tenants be and are hereby ordered to handover vacant possession of the suit premises at plot No. Nairobi Block 163/1088/112 Umoja 3 to the Applicant/Landlord”.b.That the order for vacant possession be executed by an appointed Auctioneer through the supervision of the OCS Buruburu Police Station andc.That the Landlord be and is hereby allowed to sell any distrainable goods if any found to recover rent arrears through an appointed auctioneer”.

3. In the application which was supported by the affidavit of abshir afrah said to be a director of the landlord and sworn on even date had annexed thereto termination notices dated 25/1/2023 to all the Tenants/Respondents, an affidavit of service by a court process server evidencing service of the Termination notice and marked “AA2” and finally an unmarked letter from this Tribunal dated 5/6/2023 confirming that the Tenants/Respondents had not filed any reference to the Tribunal in response to the said Termination notices.

4. When the Application was presented to the court at the first instance, orders ensued certifying the application as urgent and directed service of the same for hearing on the 11/7/2023.

5. The 11/7/2023 fell on a public holiday and this matter was therefore fixed for hearing on the 10/8/2023. On the later date, the then counsel for the landlord a Mr. Kamau sought for an adjournment to ensure that proper service was effected on all the Respondents. This matter was therefore set down for hearing on the 7/9/2023.

6. When this matter came before me on the 7/9/2023, a Mr. Gachomo appeared for the landlord but there was without representation from the Tenants. Having perused the application dated 6/6/2023 in its entirety, the Affidavit of service by one Gibson Mutunga Muli sworn on the 4/9/2023, I allowed the same in its entirety. Formal orders to that effect and dated 8/9/2023 were given.

7. By an application dated 22/9/2023, the landlord again approached this Tribunal seeking for orders that:-“That this Honourable court be pleased to review and amend order (2) of the orders granted on the 7/9/2023 and direct that the OCS Mowlem Police Station to supervise the implementation of court orders herein”.

8. This particular application was informed by the reality that the demised premises fell within the area of jurisdiction of Mowlem Police Station as per the earlier orders granted on the 7/9/2023. The application was on the 11/10/2023 allowed as prayed as a fresh order incorporating that prayer was issued on the even date of 11/10/2023

9. Subsequent to the above, the landlord made an application by a letter dated 18/10/2023 seeking to have M/S Vision Root Auctioneers appointed to execute the orders herein under the supervision of the OCS Mowlem Police Station. The application was duly granted by my brother Hon. Gakuhi Chege on the 18/10/2023.

10. The landlord by a further application dated 15/11/2023 also brought under certificate of urgency sought for the following reliefs:-a.That this honourable tribunal be pleased to review its orders dated 11/10/2023 to include an order for demolition of the Respondents structures on the suit property”.

11. In support of the application was a supporting affidavit sworn by one Abshir Hachi Afrah on the 15/10/2023 which is obviously erroneous as the same should have read 15/11/2023. The foundation for the reliefs sought was that the respondents had resisted eviction by the duly appointed auctioneers and the OCS Mowlem Police Station and had further defied the court orders.

12. To the landlord, only demolition of the illegal structures erected on the suit land by the respondents would give effect to the orders of this court as made on the 7/9/2023 and reviewed on the 11/10/2023.

13. The 9th respondent on its part filed the application dated 23/11/2023 also under certificate of urgency. The same was supported by the affidavit of Alice sworn on even date. The application sought for the following reliefs,i.Spent,ii.That the honourable tribunal and/or suspend the enforcement and/or extension of the orders issued on the 25/10/2023 and all consequential process arising therefrom, pending the hearing and determination of this application.iii.That the Applicant be ordered to produce the court process server for cross-examination, andiv.That costs of this case be provided for,

14. The 5th and final application in this matter is the one dated 15/12/2023. The same is filed by the landlord citing new developments related to the demised premises. The same sought for the following reliefs,i.Spentii.That the application dated (sic) the 15th day of February 2023 be heard on priority basis as the 5th day of February 2024 is prejudicial to the landlord as he has already been served with completion notice by the purchaser over the suit property”.iii.That this Honourable tribunal be pleased to set aside the orders granted to the 9th respondent on the 29/11/2023 obtained through false misrepresentation of facts before this Honourable tribunal therefore an abuse of the Tribunal process”.iv.That this Honourable tribunal be pleased to reinstate its orders dated the 25/10/2023. v.That the respondents illegal structures erected on the suit property be demolished with (sic) immediate.vi.That the costs of this application be provided for.

15. Before I set down the cases for both parties herein, it is important to settle on the issues of the court record. There are several erroneous assertions by both parties when looked against the court record. I identify the same as follows:-i.In its application dated 15/11/2023 the landlord sought for the review of the court orders dated 11/10/2023,. The correct position is that those were orders made on the 7/9/2023 and amended on the 11/10/2023 on grant of orders of review thereof.ii.The tenant in its application dated 23/11/2023 sought for the stay, set aside and or suspend the orders made on the 25/10/2023. From the court record no orders were issued on the 25/10/2023. The orders that the Tenant must have been referring to are those made on the 7/9/2023 and reviewed on the 11/10/2023. iii.The landlord again in its application dated 15/12/2023 sought to have its application dated 15/10/2023 heard on priority. It is obvious that we do not have such an application on record. The land must have meant to address the application dated 15/11/2023 but supported by an affidavit erroneously dated 15/10/2023.

16. That despite the apparent short comings in the applications and the obvious and rampant errors, I decided to look at the overall interest of justice in this matter.

17. The case for the landlord was that:-i.It served the 10 Tenants with notices to terminate their respective tenancies but non of them objected to the said notice, filed an objection or reference before the tribunal.ii.By a letter dated 5/6/2023 the tribunal confirmed that no reference had been filed by either of the Tenants.iii.It had initially intended to take possession and use of the demised premises but has since disposed off the same to a 3rd party.iv.None of the tenant had paid rent to it for at least two (2) months before the date of the said notice todate.v.The tenants had erected illegal structures on the demised premises without its authority and had even sub-let some to strangers.vi.Any attempt to execute the orders issued on the 7/9/2023 and revised on the 11/10/2023 had been met with violence.vii.It therefore required the order of possession to be reinstated and the same be enforced by demolition of all the illegal structures on the demised premises.viii.The landlord indicated that all the termination notices had been served on all the Tenants including the 9th respondent and affidavits of service filed in court.ix.That it was not able to access the process server who served the termination notices as he had not left any contacts and a different counsel was on record for the landlord.x.The landlords counsel m/s Halima Wanjiku also made submissions in support of the case for the landlord.xi.On its part, the 9th respondent filed the application dated 23/11/2023 on its behalf and that of the 5th and 10th respondents. The gist of their evidence was that:-i.They were never served with the notices to terminate their respective tenancies dated 25/1/2023 nor with any court processes.ii.That it was through a mutual friend who saw their names in the Tribunals cause list that alerted them about this matter.iii.The purported process server be availed in court for cross-examination.

20. from the materials placed before me by both parties the issues that avail themselves to help in the effectual and just settlement of this matter in my considered view are the following:,A.Whether the termination notices by the landlord against the tenants and dated 25/1/2023 Are EffectiveB.Whether the respondent’s application dated 23/11/2023 is merited.C.Whether the landlord’s applications dated 15/11/2023 and 15/12/2023 have meritD.Who should bear the costs of this suit.

21. On Issue No. A on whether the Termination notices by the landlord against the Tenants and dated 25/10/2023 are effective, I would admit that this is a contested issue. The landlord has expressed the termination notices, the letter from this tribunal confirming that no reference had been filed and affidavit of service to confirm the service.

22. Indeed the Affidavit of service by one James Mwangi asserts that the 9th respondent among others acknowledged service of the Termination notice by appending their signatures thereon. What has mainly concerned me is that the 9th respondent has not in anyway or at all denied signing on the termination notice or that the alleged signature thereon was not hers.

23. If that was the case, the need for the process server to be availed would have become very fundamental . though it is the right of each and every litigant to verify the averments by a process server, the same must be looked at from the totality of evaluation of each case.

24. In this matter, the process server who was instructed by a different firm of advocates had not left any contacts behind, the court was informed that it was impossible to reach the said process server and therefore avail him for cross-examination.

25. from the record, it is not in dispute that m/s Halima Wanjiku advocates were not on record for the Tenant when the contested service was effected. It is therefore a possibility that to reach the concerned process server became an impossibility.

26. What makes me lean towards acceptance of the service of both the termination notices and other court processes is the conduct of the 9th Respondent and the other 9 respondents in general.

27. The 9th respondent apart from the general denial that she was never served, has not denied the signature on the served documents as hers and has also not paid any rent to the landlord since the purported service of the termination notices.

28. it plainly defeats logic that a Tenant who has not received a termination notice could sit on a demised premises without meeting her rental obligations to the landlord for a whole calendar year.

29. I would therefore make a determination that the Affidavits of service on record by James Mwangi sworn on the 23/3/2023, by John Maina sworn on the 4/7/2023, by Gibson Mutunga Muli sworn on the 4/9/2023 and finally by Bashir Mwambaha sworn on the 17/11/2023 as legitimate and admissible as evidence of proper service of the processes concerned.

30. In view of the above I revert to Section 10 of the Act which provides that:-“Where a landlord has served a notice in accordance with the requirements of Section 4 of this Act, or a tenant, and the tenant fails within the appropriate time to notify the landlord of his unwillingness to comply with such notice, or to refer the matter to a tribunal then subject to Section 6 of this Act, such notice shall have effect from the date therein specified to terminate the tenancy, or terminate or alter the terms and conditions, thereof or the rights or services enjoyed thereunder”.

31. It follows then that the termination notices to the Tenants/Respondents herein took effect on the 1st April 2023,

B. Whether The Respondents Application Dated 23Rd November 2023 Is Merited 32. I would at the outset say that the Application dated 23/11/2023 s a Cul-de-sac so to say. The orders sought are to stay the absent orders dated 25/10/2023 pending the hearing and determination of the Application.

33. There will be nothing left after determination of the Application as the Tenants never sought for leave to defend either of the Applications dated 6/6/2023, 22/9/2023 and 15/11/2023 or to file references against the notices of termination outside time.

34. Section 6(1) of the Act provides that:-“A receiving part who wishes to oppose a tenancy notice, and who has notified the requesting party under Section 4 (s) f this Act and he does not agree to comply with the tenancy notice, may, before the date upon which such notice is to take effect refers the matter to the tribunal, whereup such notice shall be of no effect until and subject to the determination of the reference by the tribunal provided that a tribunal may, for sufficient reason and on such conditions as it may think fit, permit such a reference notwithstanding that the receiving party has not complied with any of the requirements of this Section”.

35. Section 12(4) of the Act provides another avenue to approach this tribunal for intervention in case of any grievances. The same states that:“In addition to any other powers, specifically conferred on it by or under this Act, a tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant and may make such order thereon as it deems fit.

36. From the above, it is my view that the Tenants (9th respondents) application dated 23/11/2023 and the prayers sought thereunder were not meant to live beyond interrupting the Landlord’s orders issued on the 7/9/2023 and reviewed on the 11/10/2023. .

37. I therefore do not find any merit on the 9th respondent’s application dated 23/11/2023 and proceed to dismiss the same.

Issue C Whether The Landlord’s Application Dated 15/11/2023 And 15/12/2023 Have Merit 38. From my determination above, it goes without saying that having dismissed the 9th Applicant’s application dated 23/11/2023, the orders of this court made on the 7/9/2023 and reviewed on the 11/10/2023 are restored.

39. For clarity the said orders dictated the following,i)That the respondents/Tenants be and are hereby ordered to handover vacant possession of the suit premises at Plot no. Nairobi/block 163/1088-112 Umoja 3 to the Applicant/Landlord.ii).That the order for vacant possession be executed by an appointed auctioneer through the supervision of the OCS Mowlem Police Station.iii).That the landlord be and is hereby allowed to sell any distrainable goods found to recover rent arrears through an appointed auctioneer.iv)Costs to the Landlord.

40. It is important to note that by an order made on the 18/10/2023, my bother the Hon. Gakuhi Chege had allowed the appointment of M/S Vision Root auctioneers to help in the enforcement and or implementation of the orders of this court as made on the 7/9/2023.

41. The application dated 15/11/2023 by the Applicant/Landlord sought for the following relief,“That this Honourable tribunal be pleased to review its orders dated 11/10/2023 to include an order for demolition of the Respondent’s structures on the suit property”.

42. The main contention by the landlord in this application is that the Respondents have resisted the implementation of the orders of this tribunal. It claimed that the respondents have triggered violence and even visited the same to the police and auctioneers who went to conduct their lawful duties as instructed by the court.

43. The landlord therefore sought to be allowed to demolish all the illegal structures erected on the demised premises out and above the eviction as earlier granted by this court.

44. I note that the Respondents and in particular the 9th respondent did not offer any response or objection to the said application dated 15/11/2023. The affidavit sworn by Alice on the 26/12/2023 did not offer any rebuttal to the landlords assertions that the respondents had instigated violence against implementation of court orders and that they had erected illegal structures on the demised premises.

45. There was also no rebuttal by the respondents that in the illegally erected structures they had installed strangers therein without either the consent nor the knowledge of the landlord.

46. Under section 12(e) of the Act, it is provides that among the powers of this tribunal is to:-“Make orders upon such terms and conditions as it thinks fit, for the recovery of possession and for the payment of arrears of rent and mesne profits, which orders may be applicable to any person whether or not he is a tenant, being at any material time in occupation of the premises comprised in a controlled tenancy”.

47. Section 12(4) of the Act provides that:-“In addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the Tenant and may make such order thereon as it deems fit”.

48. The Act at Section 12 (h) provides that the tribunal may:-“award compensation for any loss incurred by a tenant on termination of a controlled tenancy in respect of goodwill, and improvements carried out by the tenant with the Landlord’s consent”.

49. In the instant matter, it is not disputed that the structures irregularly or illegally erected in the demised premises were by the 9th respondent and the other respondent when they were the Tenants of the Applicant. There is no rebuttal to the Applicants assertion that his consent nor approval was not sought.

50. Having determined that the termination notices against the respondents were legitimate and valid in the eyes of the law, it then speaks to the right of the Applicant under section 12(1) (e ), (L) and (4) of the Act to benefit from vacant possession of the demised premises.

51. I doubt that the orders made by this tribunal on the 29/11/2023 would have issued if information was available to the effect that since the service of the termination notices dated 25/1/2023 or the 26/1/2023, none of the respondents had paid any rent to the Applicant.

52. As court orders can never be in vain nor futile, I would therefore allow the applicants application dated 25/11/2023, by adding onto the orders issued on the 7/9/2023 and revised or the 11/10/2023 an order for removal and or demolition of the Respondents structures erected on the demised premises being Title No. Nairobi Block 163/1088-112 Umoja 3.

53. The application dated 15/12/2023 is already spent in terms of prayers 1 and 2. I also note that prayers 3 and 4 thereof are also spent in view of my determination in relation to the application dated 23/11/2023. Prayer 5 is the same prayer in relation to the application dated 15/11/2023 by the landlord. That speaks to the said Application having been fully compromised.

54. I would briefly also wish to observe that from the plain perusal of the sale Agreement in relation to the demised premises and dated 13/10/2023, the same without any further intrinsic or extrinsic intervention appears a normal business engagement. The same was undertaken when the landlord had been given the green light by this court to take possession of the demised premises.

55. It is apparent from the face of the said agreement/contract that the landlord would suffer immensely if the orders granted to him on the 7/9/2023 and revised on the 11/10/2023 and which informed his engagements with the Third Party were to be reversed. It would be for the larger interest of justice for the restoration of status quo at the time of the said engagement.

Issue No. D Who Should Bear The Costs Of This Suit 56. From the evaluation of this matter in its totality, I do not see any reason whatsoever to depart from the compelling wisdom of the provisions of section 27 of the Civil Procedure Act. I would therefore award the costs in this matter to the Applicant/Landlord.

Final Disposition 56. That from the foregoing, the orders that commend themselves to me in just settlement of this matter are the following,i)That the orders of this Tribunal issued on the 7/9/2023 and revised on the 11/10/2023. Pursuant to the Applications dated 6/6/2023 and 22/9/2023 respectively are confirmed and restored.ii)That the Applicants application dated 15/11/2023 and 15/12/2023 are granted in terms that all the illegal structures or the structures erected by the respondents on the demised premises namely Title No. Nairobi/Block 163/1088 112 Umoja 3 are ordered removed and/or demolished forthwith.iii)That the Application dated the 23rd November, 2023 by the Respondents is dismissed.iv)That the costs of this suit to the Landlord/Applicant.Those are the orders of this court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 4TH DAY OF JANUARY, 2024. HON. NDEGWA WAHOME, MBSMEMBERBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of M/S Halima Wanjiku for the Landlord and in the absence of Mr. Nderitu for the Tenant.