[2021] KEBPRT 481 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

VIEW PRK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 42 OF 2019 (NYERI)

PAUL NDIRITU MURIUKI....................SUB-TENANT

VERSUS

DANIEL MOTOKU.....................................LANDLORD

JUDGMENT

This matter proceeded before the then Chairman of BPRT Hon Mbichi Mboroki on 9th December 2019 when it was reserved for filing of submissions by 17th January 2020.

The matter was mentioned on 17th January 2020 but none of the parties had filed submissions. The matter was therefore adjourned for further mention on 9th March 2020.

On the said date, no submissions had been filed and the matter was again adjourned to 12th March 2020. On 12th March 2020, only the Tenant’s counsel had filed submissions and the matter was reserved for judgement on 25th May 2020with leave to the Landlord to file submissions within 14 days.

The former Chairman retired from service before writing the judgment and the task of writing the judgement fell on me. This judgement is therefore written pursuant to order 18 Rule 8 of the Civil Procedure Rules.

The Tenant’s testimony is that his daughter was carrying out business of car wash at Ruringu. The business belonged to his daughter’s husband one Benjamin Wanjohi.

The business was started in the year 2008 and was taken over by the wife in 2015 after the original Tenant died.

It was the Tenant’s evidence that he had been carrying on the business with his daughter since 2015. The Landlord wanted his daughter out of the business and there was another case before the Tribunal.

The daughter passed away on 23rd April 2019 when the business was still running. The Landlord called the Tenant after the daughter passed away and told him that they wanted him out of the premises.

He however continued with the business. He sent the Landlord Kshs 20,000 as rent payment but the same was returned to him. He proceeded to file this case and was issued with orders. According to the Tenant, they have carried out developments on the plot as per the photographs attached to the affidavit in support of the application.

According to the Tenant, he had not been served with any formal notice to vacate the premises but the Landlord had refused to accept rent though the business was still going on. He confirmed that the Landlord had filed a case against him being Nyeri Civil No. 60/2019.

In cross-examination, the Tenant said that his son in law was actually the Tenant. He was not aware if his son in law had been served with notice.

He sent Kshs 21,000/- on 6th May 2019. The Nyeri Law Court’s case seek for eviction orders against the Tenant.

On being questioned by the court, the witness stated that the business belonged to his daughter and he had not filed a succession cause. The Landlord on the other hand testified that he was the owner of the suit premises and was the deponent of the affidavit sworn on 1st October 2019 which he adopted as evidence before the Tribunal.

He confirmed having received a sum of Kshs 21,000/- via Mpesa on 6th May 2019 but returned the money to the sender.

He also confirmed that there was a business of car wash going on at the suit premises where he had constructed a store and a concrete slab before leasing out the premises. There was no development by the Tenant. He testified that he had told Gladys to vacate the site.

In re-examination, the Landlord stated that he had served Gladys with the notice to vacate the premises on a date in 2015 that he could not remember.

From the foregoing evidence, I am now called upon to determine whether the Applicant/Tenant is entitled to the orders sought in the application dated 23rd May 2019. I am also called upon to determine whether the Respondent/Landlord is entitled to the orders sought in the motion dated 1st October 2019 in which he seeks for the reference filed on 14th May 2019 to be struck out and that this matter be referred to the Constitutional Court for determination.

The application is based on the averment that the Applicant/Tenant has come before the Tribunal without any evidence that he is a lawful Tenant of the Respondent.

It is the Landlord’s case that the Tenant’s action offends Article 40 of the Constitution, 2010on acquisition and ownership of property.

The Landlord contends that the Tenant wants the Tribunal to create a tenancy relationship, fix the rent payable and the mode of payment of such rent by asking the Tribunal to allow him to deposit rent with it.

The Landlord contends that the Applicant/Tenant withheld from court information which would help it reach a just conclusion.

In the affidavit in support of the motion which the Landlord swore on 1st October 2019, he annexed pleadings in Nyeri CMELC case No 60 of 2019 as annexure PMK 1 and the order of vacant possession given on 6th November 2014 against Benjamin Wanjohi in Nyeri BPRT No 65 and 66 of 2014. In all the three (3) cases, the Landlord is named as a party.

The order of vacant possession directs Benjamin Wanjohi (the late son in law to the Applicant) to vacate the suit premises by1st September 2015and in default he be evicted therefrom. The order was acknowledged by the Tenant herein in his evidence.

I have considered the whole evidence tendered herein and submissions filed by the Tenant’s counsel and wish to make the following observations;

1. The reference filed by the Tenant vide Nyeri BPRT No. 40 of 2019 was marked as withdrawn on 9th December 2019 leaving the application herein without a foundation.

2. There is no dispute that the Tenant’s son in law was ordered to vacate from the suit premises vide Nyeri BPRT No. 65 and 66 of 2014 on 16th September 2014.

Benjamin Wanjohi is the deceased son in law of the Tenant/Applicant herein.

I have not seen any other order setting aside the said order for vacant possession.

3. The Tenant has not provided any evidence to demonstrate that he ever entered into a new relationship with the Landlord after the said order and death of original Tenant’s wife.

4. No evidence of payment of rent has been tendered to confirm that the parties have a Landlord/Tenant relationship.

5. The Applicant/Tenant has not demonstrated that she holds a grant of letters of administration in respect of the estate of the late Gladys (his daughter) to enable him institute this case on behalf of her estate as legal representative in line with the Law of Succession Act, Cap 160 Laws of Kenya (see Virginia Edith Wambui Otieno Vs Joash Ochieng Ougo & Another [1987] eKLR at page 9/12 paragraphs 2 – 4 thereof).

6. Section 2 Cap 301defines a controlled tenancy to mean a “tenancy of a shop, hotel or catering establishment which has not been reduced in writing or which has been reduced into writing and which is for a period not exceeding 5 years…”

The section defines “Tenant” in relation to tenancy to mean “the person for the time being entitled to the tenancy whether or not he is in occupation of the holding and includes a subtenant.”.

7. I observe that there is no evidence tendered to demonstrate that the Applicant was ever recognized by the Landlord/Respondent as a Tenant within the meaning and interpretation of section 2 of Cap 301, Laws of Kenya.

Consequently, I hold as follows;

a. The Applicant has failed to prove that he is the Landlord/Respondent’s Tenant in the suit premises and therefore a person entitled to this court’s protection.

b. The Applicant has failed to prove that he holds a grant to entitle him to institute suit and litigate on behalf of his late daughter Gladys who is alleged to have taken over the suit premises upon death of Benjamin Wanjohi (deceased).

c. The said Benjamin Wanjohi (deceased) had been ordered to vacate from the suit premises prior to his death vide Nyeri BPRT No 65 and 66 of 2014 which order was not appealed from.

d. In absence of a Landlord/Tenant relationship, this Tribunal has no jurisdiction to issue the orders sought by both parties.

The upshot of the foregoing holdings is that both applications fail with each party meeting own costs of the suit.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY BY HON GAKUHI CHEGE THIS 7TH DAY OF MAY 2021 IN THE PRESENCE OF MR MINDO FOR THE LANDLORD AND IN THE ABSENCE OF THE TENANT.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL