[2024] KEBPRT 138 (KLR)

Nyokabi v Muthuuri (Tribunal Case E014 of 2023) [2024] KEBPRT 138 (KLR) (16 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 138 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E014 of 2023

CN Mugambi, Chair

January 16, 2024

Between

Ashley Nyokabi

Tenant

and

Joyce Muthuuri

Landlord

Ruling

1. This ruling is in respect of the applications dated May 9, 2023 and July 7, 2023 filed by the tenant and the landlord respectively.

2. The application by the tenant dated May 9, 2023 seeks orders that the landlord be restrained from harassing and evicting the tenant pending the hearing of the application while the landlord’s application dated July 7, 2023 seeks orders that the landlord be granted leave to levy distress for rent, a declaration that the lease/tenancy between the parties has expired, an order of eviction against the tenant and police assistance through the OCS Meru police station.

The Tenant’s depositions on the Notice of Motion dated 9. 5.2023 3. The affidavit sworn by the tenant on May 9, 2023 may be summarized as follows:-a.That the tenant is a protected tenant.b.That unless the respondent is restrained by the tribunal, she is likely to evict the tenant.c.That the tenant has objected to the respondent’s notice dated February 28, 2023 by filing the instant suit.d.That the tenant has no pending arrears of rent.e.That the respondent has no right to evict the tenant.

The Landlord’s response 4. The affidavit by the landlord in response to the tenant’s affidavit sworn on 9. 5.2023 may be summarized as follows;-a.That the applicant/tenant and the landlord entered into a lease agreement for the suit premises for a period of one year ending on May 31, 2023. b.That the suit premises was utilized by the tenant for a wines and spirits take away business, though the tenant started allowing her clients to drink from the suit premises leading to some tenants leaving the other rented premises in the respondent’s plot.c.That the lease period has come to an end and the respondent is not willing to renew the same.d.That the respondent has served the tenant with a notice to terminate tenancy upon the expiry of which the tenant has refused to vacate the premises.e.That the tenant is in rent arrears and has not paid rent for December 2022. f.That the tribunal has no powers to rewrite agreements between parties and/or to extend leases.

The Tenant’s Supplementary affidavit 5. The supplementary affidavit sworn by the tenant on August 11, 2023 may be summarized as follows:-a.That the parties had an oral lease agreement entered into on March 18, 2022 but a formal written agreement was introduced in May of 2022 and the due date for the payment of rent changed from 18th to 5th of every month.b.That the tenant has never allowed her clients to drink on the premises.c.That the breakdown in the parties relationship started when the tenant declined to give the respondent wines and spirits on credit.d.That the respondent disconnected the tenant’s water supply and reconnected the same only after the Meru water company intervened.e.That the tenant is a protected tenant.f.That the respondent has not come to court with clean hands.g.That the tenant has made overpayments of rent which the Respondent refuses to refund or acknowledge.h.That the tenant has made improvements on the suit premises to the tune of Kshs. 1,200,000/=.The Landlord’s depositions in support of her application dated July 7, 2023

6. The landlord has deponed in the supporting affidavit that the lease agreement between her and the tenant expired on May 31, 2023 and inspite of that expiry, and a notice of termination issued to the tenant, the tenant has refused to vacate the suit premises.

7. The landlord has also deponed that the tenant has not paid the rent for the month of December 2022 and also for the months since the lease expired, that is, from June 2023 to date. The rent has accumulated to Kshs. 51,000/=.

8. The landlord has further deponed that the tenant is therefore in illegal and forceful occupation of the suit premises and has also on several occasions caused the landlord physical harm.

9. The landlord, consequently, seeks the leave of the Tribunal to levy distress against the tenant.

The Tenant’s response to the Landlord’s affidavit 10. The tenant’s replying affidavit sworn on October 27, 2023 may be summarized as follows:-a.Paragraphs 1-7 of the replying affidavit reiterates the contents of the supplementary affidavit sworn on 1August 1, 2023 by the tenant, I will not therefore repeat it here.b.That the tenant has never assaulted the Respondent.

Analysis and determination 11. The issues that arise for determination in this application in my humble view are the following:-a.Whether there exists a tenant/landlord relationship between the parties herein, and therefore, whether the Tribunal has the jurisdiction to hear and determine this matter?b.Whether the respective Applicants are entitled to the orders sought in their respective applications.

Issue A 12. According to the tenant, the parties herein entered into an oral agreement for the occupation of the suit premises on March 18, 2022, and a written agreement was introduced by the landlord in May 2022. I have seen the lease agreement annexed to the respondent’s affidavit as the respondent’s exhibit JM1. It is dated May 17, 2022 and the term is for one year, therefore expiring on May 31, 2023. The respondent has stated in her affidavit that she is not willing to renew the lease and that further she has not received any rent from the tenant since the expiry of the lease. The tenant does not dispute this fact.

13. It is therefore clear that the lease agreement between the parties expired by effluxion of time on May 31, 2023 as provided for in the said agreement. It is also the position that where an agreement provides for its own expiry date, the parties are not obligated to issue fresh notices terminating the leases.

14. The agreement between the parties was not renewed, this therefore means that beyond the May 31, 2023, the tenancy between the parties expired and the tenant was no more than a trespasser upon the suit/respondent premises. Upon the said expiry, it was incumbent upon the tenant to give vacanct possession. In the case of; Kasturi Limited v Nyeri Wholesalers Ltd [2014]eKLR.The court in this regard held as follows;-“on the counterclaim for vacant possession of the premises, we cite with concurrence the dicta by Lord Halsbury in Jacob v Booths Distillery Co 85 LTD at page 262, where he stated that;“There are some things too plain for argument. In the present case, it is plain that the tenancy agreement between the parties expired on April 14, 2009 and has never been renewed. It is also proved that the Appellant received a notice for non-renewal of the tenancy. We concur with the learned Judge that the Appellant has no triable issue in the counter claim for vacant possession. It is the duty of the courts to ensure that no individual is prevented from taking possession, and or enjoying their property. A tenant cannot impose or force himself on a landlord. In the instant case, when the lease between the parties expired, it was incumbent upon the Appellant to give vacant possession.”

19. Having found that there does therefore not exist a landlord/tenant relationship, it follows that the tenant is not entitled to the prayers sought in her application. The issue for determination in the circumstances, is whether the Tribunal has jurisdiction to hear and determine the landlord’s application for orders of eviction and distress for rent. In answer to this question, section 12(1)(e) of Cap 301 provides that the Tribunal has powers;“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.”

20. A plain reading of the above section clearly demonstrates that the tribunal has the jurisdiction to deal with the respondent’s application as at all material times, the tenant is in occupation, even as I have already found that the tenancy has expired.

Issue B 21. I have already found that the tenancy between the parties herein expired by effluxion of time on May 31, 2023. I have also found that the tenant, upon the expiry of her said lease and barring any renewal thereof, she was obligated to render vacant possession of the premises. in these circumstances, I do not find any merits in the tenant’s reference and application and the same is hereby dismissed with costs to the landlord/Respondent.

22. The Respondent has claimed in his application dated July 7, 2023 that the tenant did not pay the rent for the month of December 2022 and rent from June 2023 to date. The tenant does not dispute the non-payment of the December 2022 rent but only claims that he has overpaid rent. The tenant has however not provided any particulars of the overpayments. I do therefore find on a balance of probabilities that the tenant is in rent arrears as claimed by the respondent. I therefore do find that the landlord’s application dated July 7, 2023 has merits and pursuant to the provisions of section 12(1)(e), do proceed to allow the same.

23. Consequently, I hereby make the following orders;-(a)that the reference and the application by the tenant, both dated May 9, 2023 are hereby dismissed with costs to the respondent.(b)that the tenancy between the parties herein expired on May 31, 2023. (c)That the tenant is in rent arrears since from 2023 to date and that the rent for December 2022 remains unpaid by the tenant to the respondent.(d)that the tenant is to render vacant possession and pay all the outstanding rent arrears within the next sixty (60) days from the date of this ruling.(e)that the tenant failing to render vacant possession and pay the rent arrears within the time frame set out in order (d) above, the respondent will be at liberty to levy distress for rent against the tenant and to forcefully evict her through a licensed auctioneer.(f)That the OCS Meru police station will ensure compliance with these court orders where appropriate.(g)The landlord shall have the costs of her application dated July 7, 2023.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF JANUARY 2024. HON. CYPRIAN MUGAMBICHAIRPERSONPARA 16. 01. 2024BPRT CASE NO. E014 OF 2023 (MERU) 4