[2025] KEBPRT 36 (KLR)

Paul v Mwaranja (Tribunal Case E001 of 2024) [2025] KEBPRT 36 (KLR) (15 January 2025) (Ruling)

Neutral citation: [2025] KEBPRT 36 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E001 of 2024

CN Mugambi, Chair

January 15, 2025

Between

Polly Kiende Paul

Tenant

and

Joseck Muthuri Mwaranja

Landlord

Ruling

1. The Landlord’s notice to terminate tenancy dated 28. 12. 2023 is brought on the grounds;-a.That the Landlord intends to carry out major renovations of the premises which cannot be done while the Tenant is in occupation.b.That the Tenant is to clear all outstanding bills before she vacate suit premises.

2. The Tenant in opposing the notice to terminate tenancy has field a Reference to the Tribunal dated 16. 1.2024.

3. The parties in this matter have filed a Plaint and Defence respectively. I need to point out that the procedure is one normally reserved for Civil Courts and is not provided for under Cap 301 of the Laws of Kenya.

The Landlord’s Evidence in Support of the Notice to terminate tenancy 4. The Landlord’s evidence may be summarized as follows:-a.That he issued a notice to terminate tenancy to the Tenant dated 28. 12. 2024. b.That the parties entered into a lease agreement which allows for termination of the tenancy at Clause 15 and 17 of the agreement.c.That the Landlord complied with Clause 15 and 17 in terminating the tenancy.d.That the Tenant did not honour Clause 9 and 10 of the agreement.

5. Upon Cross Examination, the Landlord’s response may be summarized as follows;-a.That he served a notice to terminate tenancy upon the Tenant with whom he had executed a lease agreement dated 28. 10. 2021. b.That the Tenant can only make alterations with the consent of the Landlord which must be in writing according to Clause 9 of the lease agreement.c.That the Tenant made the renovations without the consent of the Landlord-around November, 2021. d.That the Landlord has no documentary evidence of his protestations.e.That the Tenant knocked down a wall and also removed a door and carried it away.f.That the Landlord did not issue any demand notice for her claim contained in the counter claim.g.That the Landlord expects that the Tenant would restore the wall even though there is no agreement to that effect.h.That the Tenant did not paint the suit premises neither did she construct the ceiling as it was always there even before. The Tenant did not also fix the tiles.i.That the Landlord has not refunded any money to the Tenant and the Tenant has also not given the Landlord any notice under Clause 10 of the agreement.j.That the renovations the Landlord is concerned with is the knocking down of the wall and the removal of the wall.k.That there is no evidence of the damaged iron sheets.l.That the Landlord paid Kshs. 1,000/= for the removal of the solar panel.m.That the Tenant is in rent arrears of Kshs. 4,037/=.

The Tenant’s case 6. The Tenant relied on her witness statement dated 26. 2.2024 and her Affidavit sworn on 25. 4.2024 and which may be summarized as follows;-a.That the parties herein entered into a lease agreement dated 28. 10. 2021. b.That the Tenant request under clause 10 of the lease agreement, to be allowed to make renovations and repair, the expenses of which would be incorporated in the rent and which request the Landlord acquiescented to.c.That the Tenant did carry out the renovations and repairs which costed her Kshs. 302,000/= and which the Landlord agreed to reimburse but failed to reimburse the same nor incorporate it in the rent in favour of the Tenant.d.That the Tenant has religiously paid her rent of Kshs. 12,000/= and thereafter Kshs. 13,000/= after she took an extra room.e.That in an attempt to frustrate the Tenant, the Landlord closed down the Tenant’s toilet and turned off the water for the suit premises.f.That the Tenant has a sub meter of her own and she pays her electricity bills although the Landlord has been inflating the bill by including additional units.g.That on 22. 4.2024, the Landlord abruptly switched off the electricity although the Tenant had paid her electricity bill. The Tenant had no option but to incur expenses of Kshs. 1,000/= in fuel for a generator.h.Additionally, the Tenant testified that when she took over the premises, it was in a bad state and required repairs as the roof had no tiles and the walls were not plastered, the floor had holes. The Tenant further stated that although she was to recover the cost of repairs from the rent, she did not do so.i.That the Landlord supervised the fundis who repaired the premises and also carried away the stones from the demolished wall.j.That the amount spent on the roof, floor and tiles is Kshs. 302,000/= and does not include the cost of paying fundis and transportation of the building stones.k.The Tenant’s receipts for the expenses are in court.l.That it has become very difficult to stay in the premises and the Tenant is only interested in the refund of the money she has spent in renovations, the Tenant is willing to relocate.

7. Upon Cross Examination, the Tenant’s responses may be summarized as follows;-a.That she has no written consent from the Landlord.b.That none of the receipts produced by the Tenant bear her name.c.That she installed solar panels after the Landlord refused to fix the electricity.d.That she did not have the Landlord’s consent to fix the solar panels.e.That she has paid her electricity bills.f.That though the premises was in a bad state, the Tenant took it up because it was strategic and next to the road.g.That Clause 10 of the agreement allows the Tenant to repair the premises.

8. Re-examined, the Tenant stated;a.That she started the renovations in the year 2021 and the Landlord has been to the premises several times and he has never complained about the renovations.b.That the Landlord’s notice does not make any complaints regarding the renovations.c.That the landlord is the one who sold the sand to carry out the renovations to the Tenant.d.That the receipts are not in the name of the Tenant because she was sending her workers.e.That the solar installations did not affect the premises in any way.

9. The Tenant’s Witness, Kevin Mwendwa’s evidence may be summarized as follows;-a.That he knew the Landlord and he is the one who supervised the workers while the witness and others were carrying out renovations.b.That the renovations included fixing the walls, tiling and paintwork.c.That the building was in a bad state as it was not plastered, the roof was bad and there were no furrow tiles.d.That it was the Tenant who renovated the premises.

10. Upon Cross Examination, the witness stated;-a.That the Landlord was short, fat and brown, not bearded and is clean shaven.b.That it was the Tenant who hired him.c.That the building was plastered but they repainted.d.That they demolished the wall because the premises was being extended.e.That they renovated the premises between 2021-2022.

Analysis and determination 11. The Landlord’s notice to terminate tenancy has been brought on the ground that the Landlord intends to carry out renovations that he could otherwise not carry out while the Tenant is in occupation. I have gone through the evidence of the Landlord and it is not clear what nature of renovations he intends to carry out. From the Landlord’s counter-claim, it would appear that the Landlord would like to rebuild the wall torn down by the Tenant, remove the solar panels and renovate the roof. The quotations exhibited by the Landlord are not clear and do not support the counter claim.

12. The Tenant has in her evidence stated that she is no longer interested in the suit premises and that she is willing to vacate if only the Landlord compensates her for the renovations and improvements she carried out in the premises. the Landlord on his part also counter claims for the projected cost of restoring the premises. It is therefore evident that both parties desire to have the tenancy between them terminated and therefore the only issue that I have to determine is the one of compensation or put differently, whether the parties are entitled to the monetary compensation they have claimed against one another.

13. The issue of compensation materially departs from the Landlord’s pleadings and particularly the notice to terminate tenancy which has been brought only on the ground that the Landlord intends to carry out renovations. Both parties have brought up this issue and greatly submitted on the same, they have also made it the central focus of their affidavits and the Tribunal may therefore base its decision on the said issue, though unpleaded. In the case of; Odd Jobs vs Muibia [1974] EA 476, the Court stated;“With respect to the learned Judge, that issue does not flow from the pleadings, however, that notwithstanding a court may base a decision on an unpleaded issue whereas is here, it appears from the course followed at the trial, that the issue has been left to the court for decision.”

14. The Tenant has alleged that she carried out renovations worth Kshs. 400,000/= but that she had receipts for only Kshs. 302,000/=. It is her evidence that the difference is made up of the costs of the Fundis and the transportation of the building stones. The question then is, did the Tenant have the consent of the Landlord to carry out the renovations?Clause 9 of the lease agreement between the parties dated 20. 10. 2021 provides as follows;-“The lease shall make alterations but not pull down any walls or any part thereof without the consent in writing of the lessor first hand and obtained.Clause 10 further provides as follows;“The lessee shall during the currency of the tenancy keep the premises in good tenable and decorative state of repairs and conditions provided that the lessor shall be responsible for major structural repairs provided that the lessee may make any repairs on behalf of the lessor with her consent upon giving (14) days’ notice and recover the same from his tenant.”

15. The Tenant on cross examination admitted that she did not have the Landlord’s written consent to undertake the renovations that she did. What the Tenant states is that, she took possession on the condition that the Landlord would make repairs of the premises. I have gone through the lease agreement and it does not contain any condition that the Tenant was taking up the premises on the condition that the Landlord would have to renovate the premises.

16. The Tenant has further stated that after a prolonged delay in renovating the premises on the part of the Landlord, she requested the Landlord whether she could make renovations herself and the Landlord agreed to the same as a result of which, she proceeded to do the renovations at a cost of Kshs. 302,000/= as earlier stated in this Ruling. The Landlord has however dismissed this statement by the Tenant when he deponed in his affidavit sworn on 21. 6.2024 as follows;-“4- Further and without prejudice to paragraph 3 above, I wish to categorically deny that there was any communication from the Applicant regarding any repairs as I travelled soon after executing the lease agreement and was away over a month. When I came back, I was furious to find that the Applicant herein had knocked down a wall and carried out unauthorized repairs.6- that I did not consent to any renovations and I put the Applicant to strict proof thereof.”

17. If indeed the Tenant was desirous of pulling down a wall in the demised premises, then she was required under the provisions of clause 9 of the lease agreement to obtain the Landlord’s consent in writing.Further, if indeed the Landlord delayed in carrying out the renovations as the Tenant alleges, then the Tenant was required under the provisions of clause 10 of the agreement to give the Landlord a further (14) days’ notice before carrying out any such renovations.

18. It is clear from the evidence that the Tenant did not obtain the Landlord’s consent to bring down the wall and neither did the Tenant give the notice under clause 10 of the agreement of her intention to bring down the wall and/or carry out any other renovations.

19. The Tenant called evidence to show that the Landlord was present during the renovations and indeed gave his consent. The witness called by the tenant did not even know the name of the Landlord but gave a description of the Landlord. He stated that he was hired by the Tenant and supervised by the Landlord. The Landlord has stated that after executing the lease agreement, he went away and when he came back, he found that the wall had already been demolished and other unauthorized renovations done. The tenant has therefore relied on the doctrine of estoppel to estop the Landlord from taking the position that he did not give his consent for the renovations. I think in circumstances where the relationship between the parties is governed by a very clear written agreement, parties cannot avoid the terms of the said agreement by resorting to estoppel. The Tenant in this case has not shown any attempts to comply with the provisions of Clause 9 and 10 of the lease agreement and in deciding to proceed without first complying with the said clause, the Tenant took a risk for which she can only blame herself.

20. The lease agreement at clause 9 and 10 recognizes what amounts to major structural repairs and in my view, where the agreement between the parties require the consent of the Landlord in writing before such major structural renovations are undertaken or notices issued of the intentions to carry out any such major structural renovations, then those provisions must be strictly adhered to.

21. It is my finding therefore that he renovations allegedly carried out by the Tenant were carried out without the consent of the Landlord and in contravention to express provisions of clauses 9 and 10 of the agreement between the parties.Consequently, the Tenant is not entitled to any compensation from the Landlord. This is because under Section 12(L) of Cap 301, the Tribunal only has power to award compensation for any loss incurred by a Tenant on termination of a controlled tenancy in respect of goodwill and improvements carried out by the Tenant with the Landlord’s consent. (underlining mine).

22. The Landlord has claimed against the Tenant the costs of repairing the roof of the suit premises and the cost of rebuilding the wall torn down by the Tenant. In support of this claim, the Landlord has exhibited what he terms as quotations for the said works. I have looked at the two documents and as earlier stated in the opening paragraphs of this Ruling, they do not amount to quotations for any work as quotations are strictly known. In these circumstances, the Landlord has failed to specifically prove this claim and I dismiss the same.In the case of; George & Another vs Babu (Civil Appeal No. E130 of 2023 [2024] KEHC 5986 (KLR), the court held;“Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings, they must be specifically pleaded. Special damages are thus very specific and constitute liquidated claim which must be pleaded and proved.”

Disposition 23. Following from the above findings and noting as earlier observed that both parties are no longer interested in the continued tenancy relations, I hereby make the following orders;-a.That the tenancy between the parties is hereby terminated.b.That the Tenant’s claim for compensation is hereby dismissed.c.That the Landlord’s claim for the cost of restoration of the suit premises is hereby dismissed.d.That the Tenant will vacate the suit premises within the next sixty (60) days failing which the Landlord will be at liberty to evict the Tenant with the assistance of a licensed auctioneer.e.The Tenant will pay the rent for the sixty (60) days or up to any other earlier date that she vacates the suit premises.f.That each party will bear their own costs.g.This file is ordered closed on the terms above.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF JANUARY, 2025. HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Ms. Kaunyangi for the Landlord and Mr. Waweru for the Tenant