[2022] KEBPRT 18 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. E003 OF 2021 AT NYAHURURU

NYAHURURU WOMEN GROUP..........................................................LANDLORD/APPLICANT

VERSUS

ESTHER NJERI WAIHUMBU........................................................TENANT/1ST RESPONDENT

JOHN THAIRU WAIHUMBU..........................................................TENANT/2ND RESPONDENT

RULING

A. Parties and Representatives

1. The applicant Nyahururu Women Group is the landlord and rented out space to the tenant for the business in the suit property Nyahururu Municipality Block 6/401 (hereinafter known as the ‘Landlord’)

2. The firm of Ochieng Achach & Kaino Advocates represent the Applicant/Landlord in this matter. info@oakjurists.co.ke

3. The Respondent Esther Njeri and John Thairu Waihumbu are the Tenants and rented space for the business in the suit property (hereinafter known as the ‘tenant’)

4. The firm of Mathea Gikunju & Co. Advocates represent the Respondent/tenant in this matter. matheagikunju@gmail.com

B. The Dispute Background

5. The Landlord is a registered self-help group composed of elderly women and own the suit property known as Nyahururu Municipality Block 6/401 which consists of 20 units and they rented out two units to the tenant.

6. The Landlord/applicant has since moved this Tribunal by way of reference and a notice of motion application dated 11th August 2021 under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Landlord was seeking that pending the hearing and determination of the suit the Tenant be restrained from carrying out illegal renovations, causing nuisance to the other Tenants and distracting the business of other tenants within the premises.

7. On 2nd September 2021 the Tribunal issued orders requiring that the Tenant avoid interfering with the business and from being a nuisance.

8. The Landlord filed a reference and notice of motion application dated 11th August 2021.

9. The Tenant has filed a replying affidavit dated 23rd October 2021. Parties did submissions which I have had occasion to look at.

C. List of Issues for Determination

Was subletting of the premises illegal? No

Is the Tenant a nuisance? No

D. Analysis and Findings

10. In making its findings the Tribunal finds it crucial to begin by stating that from the pleadings filed by both parties, it is evident that the tenancy relationship is unwritten as there has been no production of a duly executed lease agreement by either of the parties. The Landlord has alluded towards a tenancy agreement but has not produced the same. As such the Tribunal is convinced that the relationship falls under the scope defined under Section 2 (a) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya.

11. Having established that there exists a tenancy relationship between the Landlord and the Tenants. The Tribunal shall proceed to determine the issues raised herein.

12. The first question for determination by the Tribunal is whether the 1st Respondent has sublet the premises to the 2nd Respondent as averred by the Landlord. The Landlord has averred that the 1st Respondent has sublet the premises to the 2nd Respondent and that the 2nd Respondent has been carrying out illegal renovations and running a bar business which is causing disturbance for the other tenants.

13. In response, the Tenant in their replying affidavit has stated that contrary to the Landlord’s allegations, the premises was first leased to the 1st Respondent and one Mr. David Waihumbu (now deceased) who are the parents of the 2nd respondent.

14. Further the 2nd Respondent has stated that his parents are responsible for putting up the structures that exist in the premises and the same was to be set off from the rent payable which was the agreement with the Landlord at the time. The 2nd Respondent’ s parents put up a butchery and an annex.

15. The 2nd respondent has stated that after the demise of their father, they took over management of the premises on his behalf as well as on the behalf of the 1st Respondent, as such he is not sub-letting by managing the premises. The Landlord has not provided any evidence before this Tribunal to serve as concrete proof of the fact that the tenant is sub-letting the premises to the 2nd Respondent.

16. The 2nd respondent has also stated that with regards to the issue of running a bar, according to the agreement between the parties the respondents the tenants are not barred in any way from operating a bar and the area within which the premises exists are not zoned off as alcohol free. In support of the operation of the business the tenants have attached a liquor license permit issued by the County Government of Laikipia. The Tribunal contends this as proof enough that the operations of the bar are within the requirements of the law and cannot order for the same to be closed without just cause.

17. In addition to the above, the Respondents proceeded to have the necessary amenities, a toilet and a urinal in order to cater for the persons making use of the bar. The Tribunal finds that this was a necessary construction owing to the nature of the business being conducted in the premises.

18. The Landlord avers that the construction of the amenities was without the necessary consents, the tenants however claim that the same was a recommendation of the Public Health Officers who are the same persons that issued the liquor license permit.

19. The Tribunal is persuaded to agree with the tenant that the amenities assist in upholding of proper sanitation of the premises however the same can only be done in a way that does not affect the occupation of the other Tenants. The Landlord has not provided any evidence before the Tribunal to show that the existence of the amenities has affected the occupation of the other Tenants. Neither has evidence of nuisance to other tenants been rendered.

E. Orders

a) The upshot is that the Landlord’s reference and application dated 11th August 2021 are hereby dismissed as;

a. The Tribunal is not convinced of the averments that the 2nd Respondent is sub-letting the premises and that their occupation is a nuisance.

b. Tenant shall keep paying rent at the rate of Kshs. 14,400/- for the bar and Kshs. 30,000/-for the butchery on or before the 10th of every month.

c.Each Party shall bear their own costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 16thday ofMarch, 2022 in the presence of Matheya for the Tenant/Respondent and Amemba for the Landlord

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL