[2021] KEBPRT 640 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 947 OF 2020 (NAIROBI)

PETER MBUGUA.....................................................TENANT/APPLICANT

VERSUS

LYDIA MUGWERU........................................LANDLORD/RESPONDENT

RULING

The Tenant herein has filed a notice of motion dated 26th November 2020 and this motion that is coming up for ruling. The parties agreed to have the ruling delivered on the basis of the affidavits on record.

The Tenant’s Case:

The notice of motion dated 26th November 2020, seeks the following orders;

1. That the Landlord allows the Tenant to continue with his business without interruption.

2. That the Landlord be restrained from in any manner whatsoever and/or howsoever interfering with the Tenant’s quiet occupation and lawful enjoyment of suit plot premises located at Githurai Mumbi (I have paraphrased the prayer).

3. That the OCS Githurai Mumbi Police Station to assist in compliance with the court orders.

The grounds upon which the application is grounded have been set out in the body of the application. I will consider them later in this ruling.

The Tenant’s application is supported by the Tenant’s affidavit whose contents may be summarized as follows;

i. That the Tenant/Applicant is the Landlord’s Tenant at Githurai Mumbi where he carries on the business of “selling car wash.”

ii. That the Landlord wants to evict the Applicant for selfish reasons. She is not owed any rent by the Tenant.

iii. That the Tenant has invested time and resources on the demised premises.

iv. That the Tenant depends on the suit premises for his upkeep.

v. That the Tenant has been paying rent dutifully and he has no rent arrears.

The Landlord’s Response:

On 16th December 2020, the Landlord/Respondent filed a notice of preliminary objection but which preliminary objection was withdrawn on 31st December 2020.

The Landlord’s/Respondent’s replying affidavit sworn on 16th December 2020 may be summarized as follows;

i. That the Applicant is a Tenant of the Landlord since May 2019at a monthly rent of Kshs 15,000/- per month.

ii. That the Tenant is a serial defaulter in the payment of rent.

iii. That the Tenant’s tenancy would lapse once the Landlord got a buyer for the premises.

iv. That in August 2020, the Landlord discovered that the Tenant had constructed a residential house in the demised premises and allegedly connected water and electricity.

v. That the Tenant has sublet part of the premises to a car wash dealer without the consent of the Landlord.

vi. That the Tenant requested for and was granted three months to move out of the demised premises.

vii. The Tenant has not demolished all the structures on the demised premises.

viii. The Tenant is in rent arrears of Kshs 60,000 for the months of September, October, Novemberand December 2020.

ix. The current suit at the BPRT is similar to Milimani CMs Court Case No. E2936 of 2020.

The Tenant’s further affidavit in response to the Landlord’s affidavit may be summarized as follows:

i. That the Respondent is not the Landlord of the business premises, she holds no title deed of the business premises.

ii. The Tenant only admits to rent arrears of March and April 2020 occasioned by the effects of covid 19.

iii. The Landlord could not give the Tenant a lease agreement as she was not the owner of the premises.

iv. The construction of the structures of the demised premises was meant to expand the hardware businesses of the Tenant.

v. That the car wash is business belonging to the Tenant. He has connected water and electricity after the Landlady failed to connect the same.

Issues of Determination:

a) Whether there exists a Landlord/Tenant relationship between the Applicant and the Respondent.

b) Whether the tenancy if any, between the Applicant and the Landlord is a controlled tenancy and therefore properly before the Tribunal.

c) Whether there is a threat to evict the Tenant/Applicant and whether the alleged threat to evict the Tenant is illegal and contrary to the provisions of Cap 301 of the Laws of Kenya.

On Issue 7(a)

The reference filed by the Tenant on 3rd December 2020 is in the terms;

“The Landlord wants to evict me illegally without a court order, nevertheless, her illegal activities would make me suffer loss and damages.

It is clear therefore from the very outset that the Tenant/Applicant recognizes the Respondent as his Landlord. that in further support of this position, paragraph 6 of the Tenant’s affidavit recognizes the Respondent as the Landlord.

The Respondent’s replying affidavit also recognizes the tenancy between the Tenant and the Respondent, at paragraphs 3, 4, 5, 6 of his affidavit. The Tenant’s further replying affidavit at paragraph 6 alludes to a verbal agreement between the parties herein for a period of five years. The Tenant’s only problem seems to be that the Landlord does not have a title deed to the business premises. From the material placed before me, I am therefore satisfied that there exists a Landlord Tenant relationship between the parties herein.

On Issue 7(b)

The tenancy between the parties herein has not been reduced into writing. The duration of the tenancy is not clear from the pleadings save for the averment by the Tenant in paragraph 6 of his further replying affidavit that the parties had a verbal agreement for the duration of five years. The tenancy is therefore a controlled tenancy as per the provisions of section 2(1) (a).

On Issue 7(c)

The Tenant has, in the grounds in support of his application stated that the Respondent told him to verbally vacate the suit premises by30th November 2020failure to which she will evict him illegally without a court (sic). He has identified the nature of his business as a car wash.

The termination of and alteration of terms and conditions in controlled tenancies are governed by section 4 of Cap 301 of the Laws of Kenya. Under the said section, no controlled tenancy can terminate or be terminated otherwise than in accordance with the provisions of the Act (Cap 301).

Under section 4(2), a Landlord who wishes to terminate a controlled tenancy shall give notice in that behalf to the Tenant in the prescribed form. The Landlord in this case has not issued the notice of termination anticipated by section 4(2) of Cap 301, he has not denied issuing the eviction threats to the Tenant. Even if he had admitted to issuing the threats, it would still not amount to a notice under section 4(2) of Cap 301. I have seen attempts at reconciliation between the parties at the Chief’s Office and even promises by the Tenant to vacate. But I also note that the Tenant has denied that he agreed to any settlement at the Chief’s Offices. Summons to attend and attendance before the Chief does not and cannot replace the mandatory requirements of the act in termination of tenancies.

In view of the foregoing, I allow the Tenant’s application dated 26th November 2020 pending the hearing and determination of the reference. I further order that the reference dated 3rd December 2020 be fixed for hearing on a priority basis.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

Dated and delivered in open court this 10th day of March 2021 by Hon P. May in the presence ofthe Landlord. The firm of Obae is on record for the Tenant. No appearance.

Kalolia: Court Assistant

HON P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL