[2022] KEBPRT 56 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. 277 OF 2020 (CONSOLIDATED WITH TRIBUNAL CASE NO 406 OF 2017 AND NO. 453 OF 2017 (NAIROBI

PURITY VIOLET NYAMBURA & ROBERT NJUGUNASuing as Personal Representatives

of the Estate ofSUSAN NJERI MAINA .......................................LANDLADY/APPLICANT

VERSUS

FRANCIS MUNYI NDIRITU ........................................................TENANT/RESPONDENT

RULING

Parties and Their Representative

1. The Landlady/Applicant is the Proprietor of the suit premises rented out to the Tenant (hereinafter referred to as the “Landlord”)

2. Francis Munyi Ndiritu is the Tenant having rented the suit premises. (hereinafter referred to as the “Tenant”)

3. Learned Counsel T.W. Murage & Co. Advocates represent the Tenant. (twmurageadvocates@gmail.com)

The Dispute Background

4. The Landlord and the Tenant entered into a tenancy agreement dated 3rd February 2016 in which the Tenant was obligated to construct a detachable stall in the place owned by the Landlady. The Tenant incurred Kshs. 140,000. 00/- that was to be deducted from the monthly rent of Kshs. 8,000. 00/- and run for 17 months ending November 2016.

5. Thereafter the Landlady and the Tenant entered into a subsequent agreement dated 10th April 2017.

6. On 9th March 2020, the Landlord filed a reference on the ground that the Tenant had defaulted in payment of rent.

7. Concurrently, the Landlord filed a notice of motion dated 9th March 2020 seeking orders that:

a. The Landlady be allowed to break into the premises and rent it out to another tenant.

b. The Tenant to pay all rent arrears.

8. On 9th March 2020 the Tribunal gave interim orders that the matter is certified urgent and the Tenant be served with the reference and notice of motion.

The Landlady’s Claim

9. The Landlady/Applicant filed a reference together with a notice of motion application both dated 9th March 2020.

10. The Landlady additionally filed a further affidavit dated 25th February, 2021 and written submission dated 3rd November 2021.

The Tenants Claim

11. The Tenant filed a replying affidavit sworn on 7th October, 2021 and a supplementary affidavit sworn on 8th December 2021.

12. The Tenant filed written submission dated 8th February, 2022.

13. The matter was fixed for ruling on 3rd March 2022.

14. I have had occasion to peruse the pleadings above-mentioned of both the respondent and Tenant and I will not rehearse the same again as they are brief and to the point.

15. I will refer to them in my analysis below where relevant and I thank parties for the same.

List of Issue for Determination

16. The Landlady and the Tenant raised certain issues for determination in their submissions and affidavits, therefore, the tribunal shall proceed to distill the issues discussed by parties and their counsels who submitted in writing as below;

a. Whether there exists a tenancy relationship between the Landlady and the Tenant?

Analysis and Findings

a. Whether there exists a tenancy relationship between the Landlady and the Tenant?

17. The landlord and the tenant entered into tenancy agreement dated 3rd February, 2016. The terms of the agreement were that the Tenant was under an obligation to pay monthly rent of Kshs. 8000. 00/-. Further the Tenant had incurred costs of building the stall after the inferno and the total expense of Kshs. 140,000. 00/- would be would be calculated as rent for 17 months and end on November 2016.

18. Further the Landlady and the Tenant entered into a subsequent agreement dated 10th April, 2017. In this subsequent agreement the Tenant admitted to owing rent arrears from December 2016 to April 2017 amounting to Kshs. 25,000. 00/-. Additionally, the rent was reduced to Kshs. 5000. 00/- per month.

19. In view of the agreement and the subsequent agreement the tenancy between the Landlady and the Tenant is a controlled tenancy as defined in section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Cap 301 Laws of Kenya

“controlled tenancy” means a tenancy of a shop, hotel or catering establishment—

(b) which has been reduced into writing and which—

(i) is for a period not exceeding five years; or”

20. Section 12 (1)& (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya provides that the Tribunal has powers to;

1. (a) to determine whether or not any tenancy is a controlled tenancy;

(b) to determine or vary the rent to be payable in respect of any controlled tenancy, having regard to all the circumstances thereof;

4. In addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant, and may make such order thereon as it deems fit”

21. The above provision allows the Business Premises and Rent Tribunal to determine rent payable in respect of a controlled tenancy and in addition investigate on any other matters that may be raised in relation to a controlled tenancy, therefore, this Tribunal has jurisdiction to hear and determine the Landlady’s reference dated 9th March 2020.

22. The Tenant’s investment in renovating and or constructing the stall worth Kshs 140,000/= was therefore utilized for 17 months that ended on November 2016. In the Subsequent Agreement, the Tenant admits to owing arrears since December 2016 at the rate of Kshs. 5000. 00 per month.

23. The rental dispute between the Landlady now deceased and the Tenant culminated into two different earlier cases being Tribunal Case No. 406 Of 2017andTribunal Case No. 453 Of 2017. Which I called for and consolidated to better understand the facts herein.

24. The Landlady filed Tribunal Case No. 406 Of 2017vide a reference dated24th May 2017 on the claim that the Tenant had defaulted on payment of rent and had deserted the premises and refused to make good his default. In addition, the Landlady filed a notice of motion application dated 24th May 2017 seeking among others orders that she be allowed to break into the premises, evict the Tenant and rent out the premises to a different tenant and that the Tenant be ordered to pay rent arrears of Kshs. 33,000. 00/-.

25. This Tribunal, Hon Mbichi Mboroki, Chairman (ashe then was), issued not so interim orders on 25th May 2017 as follows:

i. The Landlady is allowed to break into the premises and rent it out to another tenant under the supervision of the O.C.S. Shauri Moyo Police Station.

ii. The Tenant to pay rent arrears of Kshs. 33,000. 00/-.

iii. The Tenant to pay the Landlady costs of the case of Kshs. 3,000. 00/- which are to be recovered as part of the rent arrears.

26. The Tenant paid the Landlady Kshs. 35,000. 00/- on 1st June 2017 via M-pesa, evidenced by the Tenant’s M-Pesa statements of the period of 11th January 2017 to 11th July 2017.

27. The Landlady while executing the order issued on 25th May 2017 broke into and locked the premises thereby barring the Tenant from assessing the same. Subsequently, the Tenant filed Tribunal Case No. 453 Of 2017vide a reference dated 14th June 2017 on the claim that the Landlady had locked the premises despite there being no rent arrears thereby the Landlady in locking the premises had denied the Tenant his livelihood. Additionally, the Tenant filed a notice of motion application dated 14th June 2017 seeking that the Landlady be restrained from harassing and or evicting the Tenant.

28. This Tribunal, Hon Mbichi Mboroki, Chairman (ashe then was), issued orders on 11th March 2018as follows:

i. The Landlady and her agents be restrained from be restrained from harassing and or evicting the Tenant from the premises.

ii. The O.C.S Shauri Moyo Police Station ensure compliance with the orders and that peace prevails.

iii. The Landlady to pay the Tenant all-inclusive costs assessed at KShs. 30,000. 00/-

iv. The Tenant shall deduct the costs from the rent.

29. Both the Landlady and the Tenant stayed away from the Tribunal since the order issued on 1st March 2018until the Landlady’s next of kin herein after referred to as Landlady/ Applicants filed a reference dated 9th March 2020 on the claim that the Tenant had failed to pay rent arrears amounting to Kshs. 125,000. 00/-.

30. The Landlady/Applicants filed a notice of motion application dated 9th March 2020 seeking orders that:

i. The Landlady be allowed to break into the premises and rent it out to another tenant under the supervision of the O.C.S. Shauri Moyo Police Station.

ii. The Tenant be ordered to pay rent arrears of Kshs. 125,000. 00/- for the months of March 2018toMarch 2020.

31. The Landlady alleges that the Tenant has not paid rent since the month of March 2018 yet he is still in possession of the premises. The Tenant has not disputed this allegation or tendered any evidence to prove otherwise.

32. The Tenant alleges that in 2017a fire burnt down all stalls in the area the disputed premises was located and the County Government moved all traders to an adjacent area. He further argues that he ceased to be the Landlady’s Tenant in the year 2017.

33. The Tenant has tendered as evidence a Nairobi County Government license that he alleges was issued to him in the year 2017 in which he was offered a space on service lane 42. The said license is blurred and this Tribunal is unable to decipher the contents therein or the authenticity of the same.

34. I find that the Tenant’s ownership allegations in respect of the disputed premise is an attempt to mislead this Tribunal as the Tenant is being economical with the truth since it is within the court records in Tribunal Case No. 453 of 2017that he pursued the Tribunal case and obtained orders issued by this tribunal on 1st March 2018as against the deceased Landlady. The nature of the orders was to the effect that the Landlady was restrained from evicting the Tenant and therefore, at the time of obtaining orders against the Landlady (in March 2018), the tenancy relationship between the Tenant and the Landlady was subsisting.

35. On 29th October 2021 the Tribunal through its Investigating Officer inspected the premises and established that the premises/stall is on a road reserve like all the structures around the Gikomba Business Area. Further, that the premise was joined with the Landlady’s shop and upon a fire outbreak they separated and a way/road was made between the shop and the disputed premises.

36. In his supplementary affidavit dated 8th December, 2021 the Tenant admits that he moved the disputed premises/stall from the earlier space where it was before the fire. The mere act of moving the stall a distance away from where it was initially to the effect that a way/road was created between the Landlady’s shop and the disputed premises, as confirmed in the findings of the Tribunal Investigating Officer in her report dated 29th October 2021, does not in any way whatsoever terminate the tenancy relationship. Moreover, the Landlady is the proprietor of the stall/disputed premises and the Tenant has not tendered any evidence to prove otherwise. Tenant having recovered all the building costs from the rent.

37. In view of the foregoing, I find that there exists a tenancy relationship between the Landlady and the Tenant herein and as such the disputed premises forms part of the Estate of the late Landlady for which her personal representatives Purity Violet Nyambura and Robert Njuguna have obtained a grant of letters of administration intestate.

38. The Tenant is bound by the subsequent agreement dated 10th April 2017 and is under an obligation to pay rent of Kshs. 5000. 00/- per month.

39. I find that the Tenant has defaulted in payment of rent and therefore owes the Landlady rent from the month of March 2018 to February 2022.

ORDERS

For the reasons given above I ORDER as follows;

a. The tenant has perpetually not paid rent as evidenced by the Tribunal Case No. 406 of 2017, and this case and the rent arrears continue to pile up.

b. The tenancy relationship has irretrievably broken down.

c. The Landlord’s application dated 9th March 2020 is allowed as prayed.

d. The Reference dated 6th March 2020 is also compromised on similar terms as above.

e. Landlord shall have costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 3rdday ofMarch, 2022 in the presence of Robert and Purity Nyamburaand in the absence of theTenants.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL