[2024] KEBPRT 371 (KLR)

Nyangari & another v Kenya Africa Othaya Bus Union Ltd (Tribunal Case E100 & E098 of 2022 (Consolidated)) [2024] KEBPRT 371 (KLR) (8 March 2024) (Judgment)

Neutral citation: [2024] KEBPRT 371 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E100 & E098 of 2022 (Consolidated)

Gakuhi Chege, Chair & J Osodo, Member

March 8, 2024

Between

Irene Nyangari

1st Tenant

Ann Nyamweya

2nd Tenant

and

Kenya Africa Othaya Bus Union Ltd

Landlord

Judgment

1. The landlord herein served both tenants with notices to terminate their tenancies dated 30th June 2022 on the grounds that it intended to develop the premises to modern facilities which is not possible when the tenants are in occupation. The notices were expressed to take effect on 1st September 2022.

2. Being opposed to the said notices, the tenants preferred separate References to this Tribunal on 8/8/2022 and 26/7/2022 respectively. The two References were directed to be heard together.

3. The landlord filed a replying affidavit sworn by Isaac King’ori Kega on 14th March 2023 in his capacity as Chairman of the Caretaker committee of the Respondent/landlord stating that the said Company was the registered proprietor of the property known as Nyeri Municipality/Block II/26 where the tenants operate their businesses.

4. According to the deponent, the premises occupied by the tenants are built of semi-permanent materials and are located opposite the Nanyuki/Nyahururu bus terminus next to the main access road.

5. The landlord had on two separate occasions been served by the County Government of Nyeri, Department of Lands, Housing, Physical Planning & Urbanization with enforcement notices regarding use of the service lane as the main access to its property and was required to provide access to the premises from the main access road and not through the service lane in terms of annexures marked “IKK2 (a) & (b)” attached to the replying affidavit.

6. The two tenants’ business premises are built on the space where the main entrance to the landlord’s property should be, and the tenants ought to vacate therefrom as soon as possible.

7. The 1st tenant filed a witness statement stating that the notices had been issued selectively to tenants in the premises and that new tenants had been let into the premises in January 2023. Secondly, the landlord could not develop the premises without the requisite licenses from the County Government being obtained.

8. According to the 1st tenant, the landlord was engaged in a witch- hunt as he had tried to increase rent through a reference in Nyeri BPRT No 59 of 2017 which was dismissed with costs. The notices from the County Government had not been shared with the tenants.

9. We are required to determine whether to approve or dismiss the said notices. We are also required to determine who is liable to pay costs of the suit.

10. The matter proceeded orally in court with the Landlord’s witness Isaac King’ori Kega testifying as LW1. He stated that the tenant Company had applied to the County Government of Nyeri for development permission of the plot so that it could build modern stalls. The County Government however insisted that the existing garage’s main gate be relocated to another road known as Meghji Rupshi Road. However, the two tenants’ premises occupy the space where the main gate can be put. As a result, a notice to vacate was issued to the tenants. The tenants objected to the notices through the instant References. The two notices from the County Government were produced as exhibits 2 & 3 respectively.

11. In cross examination, the witness stated that the main building had 5 tenants who had all been issued with notices. Two of the tenants moved out and 3 objected to the notices. He stated that they had presented drawings to the County Government and had shared the documents with their lawyer. The service lane had been rehabilitated by the County Government. The witness admitted having allowed other tenants into the premises although on short term leases pending conclusion of this case. The short-term leases were however not exhibited before this court.

12. On cross examination by the court, the witness stated that the only reason why the landlord needed possession of the suit premises was to enable it put a gate for the main building as the tenants were on the frontage of the building. Tenants accessed the building through a gate located on the service lane

13. On the other hand, the 1st tenant gave evidence as TW1 and stated that she had been in occupation of the suit premises for 20 years. She testified that there are tenants who left the premises after being served with notices for termination but new tenants were allowed in by the landlord. She stated that the gate had been installed by the landlord and that the sewer line had been repaired. She emphasized that the landlord had previously issued them with notices to increase rent which they successfully challenged vide nyeri BPRT No 59 of 2017.

14. In cross examination, the tenant stated that she was opposed to the notice as she occupied the middle space and all tenants should vacate if the landlord wishes to develop the suit property. In re- examination, she stated that Waigwa’s children were on her left and a new tenant was on her right operating a butchery since May 2023.

15. The 2nd tenant testified as TW2 and stated that she has been operating a hotel on the suit premises for the last 11 years. She was served with notice to terminate her tenancy by the landlord. She was not served with the notices from the County Government. The gate to the suit property was built by the County Government and was standard. She testified that only the two of them were served with notices to terminate tenancy. She stated that she had a previous case with landlord vide BPRT No 61 of 2017 which was dismissed.

16. Although the parties’ advocates were granted leave to file submissions, none complied.

17. Having examined the evidence on record and it is to be noted that the only documents supplied by landlord in support of its intention to construct is the planning enforcement notice dated 19/11/2021 addressed to the landlord requiring it to provide access to the existing light industrial garage and a letter dated 24/12/2020 to Architect J.F.K Kagiri which requires that the drawings presented by him should provide access to the existing workshop from the main access road and not from the service lane. The letter is in reference to “Proposed Workshops On LR Nyeri Municipality Block II/26” and not to construction of modern stalls as contained in the termination notices.

18. The Landlord has not provided the said draft drawings presented to the County Government for approval neither has there been any demonstration of availability of funds to undertake the project. The landlord ought to have demonstrated a genuine and settled intention to undertake the proposed modern stalls construction as per the notices of termination of tenancy served upon the tenants. The witness contradicted the notices by stating that he required the tenants out of the premises for purposes of creating a main gate for the main building. This coupled with his admission that he had allowed new tenants to move in after others vacated shows that the landlord’s only intention is to evict the two tenants and bring in new ones perhaps at higher monthly rents. Allowing such a course of action will be an abdication of duty by this Tribunal which was established to inter-alia protect tenants from eviction.

19. There is no evidence that the landlord has immediate intention to develop the suit property as envisaged in the case of Auto Engineering Limited v M. Gonella Ltd [1978] eKLR at page 6/11 wherein it was held as follows:-“There must, therefore, be an intention and it must be an intention which in point of time is related to the termination of the current tenancy. It seems to me that the intention must be to do one of the following things: (i) to demolish the premises comprised in the holding; or (ii) to reconstruct the premises comprised in the holding; or (iii) to demolish a substantial part of the premises comprised in the holding; or (iv) to reconstruct a substantial part of the premises comprised in the holding; or (v) to carry out substantial work of construction on the holding; or (vi) to carry out substantial work of construction on a part of the holding. If the landlord proves an intention to do one of those things, and to do it on the termination of the current tenancy, he must then prove that he could not reasonably do it without obtaining possession of the holding.”

20. Guided by the foregoing decision, we are not convinced that the landlord has demonstrated a genuine intention to undertake construction of the proposed modern stalls on the suit property and the termination notices are therefore candidates for dismissal.

21. As regards costs, the same are in this Tribunal’s discretion under Section 12(1)(k) of Cap. 301 but always follow the event unless for good reasons otherwise ordered. We have no reason to deny costs to the Tenants.

22. In conclusion therefore, the following final orders commend to us:-a.The landlord’s notices to terminate the tenants’ tenancies dated 30th June 2022 are hereby declared to be of no legal effect and are therefore dismissed.b.The tenants’ References are hereby allowed with costs.c.Each tenant is awarded costs of Kshs 20,000/= which shall be offset against the rent account if not paid by the landlord within Thirty (30) days hereof.It is so ordered.

DATED, SIGNED AND VIRTUALLY DELIVERED THIS 8TH DAY OF MARCH 2024. HON. GAKUHI CHEGE - PANEL CHAIRPERSONHON. JOYCE OSODO - PANEL MEMBERIn the absence of parties who were duly notified