[2021] KEBPRT 194 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 79 OF 2021 (MERU)

PAUL LOBO T/A

LEWIS LOBO HOTEL.............................................................TENANT/APPLICANT

VERSUS

MARIA GATITU & DOMINIC NTONGAI..............LANDLORDS/RESPONDENTS

JUDGEMENT

1. On 19th October 2018 the Landlords herein issued a Landlord’s notice to terminate tenancy under section 4(2) of Cap 301. The said notice was to take effect from the 1stday of January 2019.

2. On 17th December 2018 the Tenant herein, Paul Lobo filed his reference in opposition to the notice of termination served upon him by the Landlords.

3. On 15th June 2021, the parties herein agreed to file and rely on their client’s written statements and submissions. This judgement is therefore based on the documents, witness statements and written submissions of the parties.

4. The Landlord’s Case is found in the witness statement of Dominic Nttongai King’ori which I summarize as follows;

a. That he is the Landlord of that premises known as LR No Meru Municipality block 11/61 wherein the Tenant operates a hotel business.

b. That he did serve the Tenant with a notice to terminate tenancy dated 19th October 2018 effective 1st January 2019.

c. That the Tenant refused to vacate and instead filed this case.

d. That the reason for terminating the tenancy is to carry out renovations on the suit premises.

e. That the hotel business ran by the Tenant does not have good facilities.

f. That some facilities like toilets and bathrooms are far away from hotel rooms.

g. That the Landlord is desirous of renovating the premises and putting up new self-contained rooms.

5. The Tenant’s case is found in his statement dated 30th April 2021 and which I summarize as follows;

a. That he has been a Tenant in the suit premises since 1985operating a bar and restaurant business.

b. That he took over the business premises in the understanding that all the beneficiaries of the deceased Joseph King’ori should benefit from the same.

c. That the alleged Landlords filed and obtained letters of administration in respect of the estate of the said Joseph King’ori.

d. That the said Landlords are only trustees and they ought to seek the consent of the other beneficiaries.

e. That the Tenant has objected to the notice to terminate the tenancy.

f. That the Tenant solely relies on the said business for his livelihood and that of his entire family.

g. That the Tenant stands to suffer substantial loss if the tenancy is terminated as he does not have an alternative premises to move his business.

h. That all the other beneficiaries of the estate of the deceased Joseph King’ori have no problem with the Tenant’s tenancy.

i. That the alleged plan for the renovation of the suit premises and all the other documents have been tailored and authored for purposes of this case and should be disregarded.

6. The Landlord’s written submissions dated 28th June 2021 may be summarized as follows;

a. That the hotel building is an ‘older’ design where the hotel rooms have no toilets or bathrooms. The Landlord intends to modernize the rooms by making them self-contained for better value and reasonable rentals.

b. That the Landlord genuinely intends to improve the building by modernizing it consequent to which he issued the Tenant with a termination notice under section 4(2) of Cap 301.

c. That the ground for termination of the tenancy is found insection 7(1)f of Cap 301.

d. That the Landlord is entitled to the vacant possession sought to enable him upgrade the hotel.

e. That the Landlord is ready with all the necessary approvals from all the relevant authorities and the only thing stopping the renovations is the occupation of the suit premises by the Tenant.

f. That the Landlord has the financial resources to carry out the renovations to completion.

g. That the intended renovations are massive and cannot be carried out while the Tenant is in the premises.

h. That the Landlord has made out a case for vacant possession.

7. The Tenant’s submissions dated 21st June 2021 may be summarized as follows;

a. That the Tenant and the Respondent’s father entered into an oral tenancy agreement over the suit premises in 1985.

b. That the Respondent all along never complained of the renovations until 2018 when he issued the Tenant with the termination notice.

c. That the Tenant has made tedious and expensive renovations on the suit premises.

d. That the Tenant has always paid rent for the suit premises.

e. That the Respondent is only an administrator of the estate of the deceased Joseph King’ori and he has not demonstrated that he has the consent and authority of the other beneficiaries of the estate to carry out renovations of the suit premises.

f. That the Tenant is not acting in good faith and is actuated by jealousy, avarice and greed because of the Tenant’s flourishing business.

g. That the Respondent does not have a claim to be ascertained by this honourable Tribunal.

h. That the Tribunal does compel the Landlord/Respondent to allow the Tenant reasonable time, at least four years to relocate his business empire.

i. That the Landlord be restrained from interfering with the Tenant’s quiet enjoyment and possession of the suit premises for the duration of four years or until further orders of this Tribunal.

8. The issues that arise for determination in this suit are in my humble view, the following;

a. Whether the Landlord herein has issued a valid notice to terminate the tenancy upon the Tenant.

b. Whether the Landlord’s notice to terminate the tenancy should be approved and or upheld.

c. Whether the Tenant’s reference ought to be allowed.

9. On Issue (a)

a. The Landlord’s notice to terminate tenancy is the one dated 19th October 2018. Its effective date is 1st January 2019. The reason the Landlord has given for terminating the lease is that he intends to renovate and upgrade the building and cannot possibly do so without first obtaining vacant possession.

b. The notice is expressed to be brought under section 4(2) of Cap 301which provides as follows;

“A Landlord who wishes to terminate a controlled tenancy or to alter to the detriment of the Tenant any term or condition in or right or service enjoyed by the Tenant under such a tenancy shall give notice in that behalf to the Tenant in the prescribed form.

Under section 4(4), no tenancy notice shall take effect until such date not being less than two months after the receipt thereof by the receiving party, as shall be specified therein…”

Under section 4(5) of Cap 301,

“A tenancy notice shall not be effective for any of the purposes of this Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration or reassessment concerned and requires the receiving party to notify the requesting party in writing within one month after the date of receipt of the notice whether or not he agrees to comply with the notice.”

c.I have looked at the Landlord’s notice to terminate tenancy and I am satisfied that it complies with all the requirements of section 4(2) 4(4) and 4(5) of Cap 301 of the Laws of Kenya. I therefore do find that the notice to terminate tenancy dated 19th October 2018 is a valid notice under Cap 301 of the Laws of Kenya.

10. On issue No 8(b)

a. The ground upon which the Landlord seeks to terminate the tenancy is expressed in the notice as follows;

The Landlords intend to renovate and upgrade the building and cannot possibly do so without first obtaining vacant possession.

A Landlord can terminate a tenancy under section 7 (1) (f) Cap 301 on the ground;

“That on termination of the tenancy the Landlord intends to demolish or reconstruct the premises comprised in the tenancy or a substantial part thereof or to carry out substantial works of construction on such premises or part thereof and that he could not reasonably do so without obtaining possession of such premises.”

b. The Landlord has, in support of his notice to terminate the tenancy herein filed the following documents;

i. An approved plan for the proposed continental hotel renovations on plot No. Meru Municipality Block 11/6.

ii. A letter from Consolidated Bank confirming that the Landlord Dominic Ntongai is a customer of good financial standing and considered good for normal business transactions.

iii. A certificate of compliance from the National Construction Authority.

iv. A licence from the National Environment Management Authority (NEMA) for the implementation of the project of renovating a hotel.

c. Save for stating that the above documents have been tailored and authored for the purposes of this suit, the Tenant has not in any way challenged the authenticity of the said documents. I, for my part have not found any evidence that the documents have been doctored in any manner and I have no reason to doubt their authenticity.

d. The bundle of documents by the Njuri Ncheke Council of Elders filed by the Tenant on 28th April 2021 do not have any relevance to the dispute before the Tribunal. They seek to majorly determine the property rights between nonparties to this suit and in any event, this Tribunal does not have the jurisdiction to determine the parties’ property rights neither has it been invited so to do.

e. The certificate of official search filed by the Tenant clearly shows that Maria Gatitu Joseph and Dominic Ntongai were issued with a certificate of lease over the suit land on 25th July 1988 in a joint proprietorship as trustees. The beneficiaries of the trusteeship have not been disclosed.

f. The assertion by the Tenant that the Landlord herein does not have the consent and authority of the other beneficiaries to renovate the premises lacks merit for the simple reason that none of the so called other beneficiaries has lodged any objection in these proceedings by way of an application or an affidavit. It does not lie in the mouth of the Tenant to complaint on behalf of the undisclosed beneficiaries.

g. The Tenant’s protest is made even weaker by the fact that by his own evidence, he has been paying rent in the name of one of the registered proprietors of the suit land, one Maria Gatitu Joseph.

h. I am satisfied that the Landlord has by his documents filed on 1st October 2019 demonstrated that he intends to reconstruct the premises comprised in the tenancy and carry out substantial works of construction therein. I have seen the approved plan for the proposed renovations and it is clear that the proposed renovations cannot be carried out while the Tenant remains in occupation of the suit premises.

i. I have also seen the certificate of compliance for the proposed renovation on plot No. Meru Municipality Block 11/61 (the suit land) issued by the National Construction Authority. I have also seen the licence issued by the National Environment Management Authority in the implementation of the Landlord’s project.

j. It is therefore clear that the Landlord is prepared to renovate the building comprised in the suit premises and he has the resources so to do. The proposal by the Landlord to upgrade the hotel by putting up self-contained rooms for better value and higher economic returns far outweighs the Tenant’s concerns that the suit premises is his only source of livelihood.

11. I approve the Landlord’s notice to terminate the tenancy herein as per section 9 of Cap 301 which (where relevant) provides as follows;

a. Upon a reference, a Tribunal may after such inquiry as may be required by or under this Act, or as it deems necessary;

i. Approve the terms of the tenancy notice concerned either in its entirety or subject to such amendment or alteration as the Tribunal thinks just having regard to all the circumstances of the case.

ii. …

iii. And in either case make such further or other order as it thinks appropriate.

12. The Tenant in his submissions has made a prayer that the Tribunal compels the Landlord to allow the Tenant a reasonable time, being at least four years to relocate his business empire and a further order restraining the Landlord from interfering with the Tenant’s quiet enjoyment of the suit premises for the duration of four years.

13. Other than the commonly held ground that the Tenant carries out the business of a restaurant in the suit premises the worth and size of the business has not been demonstrated. The Tenant has also not given any specific compelling reason why his business would take four years to relocate to another premises. No particular difficulty in moving out has been demonstrated by the Tenant. The Tenant must have been aware of the possibility of moving out of the premises from the time the notice to terminate the tenancy herein was served upon him or at least a reasonable Tenant would have taken this possibility into consideration in the organization of his business affairs.

14. But even in the absence of any such evidence, I take cognizance of the fact that the Tenant herein has been a Tenant upon the suit premises since the year 1985, quiet a long period that one. What then would be the reasonable time to grant to the Tenant to relocate his business having found as I have done that the notice to terminate the tenancy is upheld?

15. Doing the best I can in the circumstances already expressed above, I do grant the Tenant up to 31st December 2021 to vacate the suit premises.

16. Consequently, I hereby make the following orders;

a. That the Landlord’s notice to terminate tenancy dated 19th October 2018 is hereby upheld.

b. The Tenant’s reference dated 17th December 2018 is hereby dismissed with costs to the Landlord.

c. The Tenant is to render vacant possession of the suit premises on or before 31st December 2021.

d. The Landlord will be at liberty to evict the Tenant from the suit premises (Meru Municipality Block 11/16) after 31st December 2021 if the Tenant will not have vacated.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Judgement dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this6thday of October 2021 in the presence of Mr Omarifor the Tenantand in the absence of the counselfor theLandlord.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL