[2022] KEBPRT 80 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 358 OF 2020 (NAIROBI)

(CONSOLIDATED WITH TRIBUNAL CASES NO. 648 & 665 OF 2020)

RICHARD MUNGAI KAGIRI.......................................................................APPLICANT/TENANT

VERSUS

MAGDALINE NGOIRI WAKARIA..................................................RESPONDENT/LANDLORD

RULING

1. The three (3) cases were on 8th September 2021 ordered to be consolidated for ease of disposal. The lead file was ordered to be Nairobi BPRT No. 358 of 2020.

2. By a reference dated 31st March 2020 in Nairobi BPRT No. 358 of 2020, the tenant complained that the Landlord intended to evict him from the suit premises illegally.

3. He filed an application of even date seeking for a temporary injunction. The said application was on 2nd April 2020 dealt with by Hon. Mbichi Mboroki (former chairman) and was allowed ex-parte.

4. The gist of the tenant’s reference and application was that the landlord had issued him with an illegal notice threatening to evict him from the business premises on or before 31st March 2020. The notices are annexed to the supporting affidavit as ‘RMK 2,3&4’.

5. The landlord filed a replying affidavit sworn on 16/4/2020 opposing the application stating that the tenant occupied the suit premises on plot no. 599/5, Kirigiti Market paying a monthly rent of Kshs.30,000/-. The tenant had no arrears.

6. A tenancy agreement dated 28th June 2016 is annexed as “MNW1’ for a period of 3 years which was renewable at expiry of the term.

7. Upon expiry of the tenancy agreement on 30/6/2019, the tenant did not apply for extension thereof as a result of which he was issued with a six (6) months notice by the landlord to vacate.

8. The notice marked ‘MNW’ was issued on 12th August 2019. The landlord denies that the notice was driven by malice or is illegal since it was issued in accordance with the tenancy agreement between the parties.

9. According to the landlord, the tenant had not invested heavily in the suit premises apart from normal repairs which were compensated through rent deductions.

10. The landlord denies ever issuing any illegal notice or interfering with the tenancy or quiet possession and enjoyment of the suit premises.

11. It is the landlord’s case that the suit premises are in a sorry state of dispair and needed extensive renovations to the sewerage system and a complete replacement of the leaking roof. Thereafter, the landlord intends to occupy the premises for purposes of carrying out a business for a period of not less than one year.

12. As such, the landlord seeks for discharge of the interim orders issued on 2nd Aril 2020 having been made on the basis of false information, frivolity and vexation.

13. The tenant filed another affidavit headed “Replying Affidavit” sworn on 29th March 2020 joining issues with the contents of the replying affidavit filed by the landlady and reiterating the contents of her supporting affidavit.

14. In Nairobi BPRT 648 of 2020, the landlord filed a reference dated 2nd July 2020 complaining that the tenant was in rent arrears amounting to Kshs.68,500/- and she prays for vacant possession.

15. The landlord simultaneously filed a motion dated 2nd July 2020 seeking leave to levy distress against the tenant’s goods in recovery of the said rent arrears and an order for vacant possession. The application is supported by an affidavit of the landlord sworn on 2nd July 2020.

16. It is the landlord’s case that the tenant had defaulted to pay rent and was in arrears of Kshs.68,500/- for the period February -June 2020 and balance of Kshs.8000/- for the month of January 2020. The tenant had been giving false promises to pay the said arrears.

17. The landlord was servicing a loan with the bank and risked losing her property for failing to remit monthly repayment on time. She was apprehensive that the Respondent will not be able to pay the arrears unless the orders sought are granted.

18. In Nairobi BPRT No. 665/2020, the tenant is seeking vide a motion dated 7th July 2020 for restraining orders against the landlord from interfering with his quiet occupation and lawful enjoyment of the suit premises pending hearing and determination of the suit.

19. He further seeks for a grace period of 12 months after Covid-19 pandemic so that he can “keenly and carefully remove “whatever belongs to him in terms of improvements without interfering with the premises. The application is supported by the tenants affidavit sworn on 7th July 2020 and the grounds on the face thereof.

20. It is deposed that he was granted leave to file reference out of time through an order given on 3rd July 2020 to oppose the tenancy notice dated 16th April 2020.

21. The tenant deposes that he has effected improvements valued at Kshs.2,127,400/- over the suit premises as per the valuation report marked ‘RMK3’.

22. According to the tenant, the landlord’s termination notice is malicious, bad in law and misleading as the latter did not provide him with a rent card nor receipts for rent payments done.

23. The termination notice was only issued to him whereas there were other tenants in the building hosting the suit premises and as such it was outrageous. He states that he has been taking good care of the suit premises and denies that it is in a sorry state of disrepair.

24. According to the tenant, despite having occupied the premises for more than 10 years, the landlord had never demanded written application for renewal of tenancy until recently.

25. As such the termination notice was unjust and unfair. The building is routinely checked by the Public Health Officers and no single complaint had been raised from that office.

26. The application is opposed through a replying affidavit of the Respondent sworn on 30th July 2020 wherein it is deposed that the application was misconceived and brought in bad faith as much as it was an abuse of court process in view of earlier applications dated 31st March 2020 and 1st July 2020.

27. The landlord confirms that the tenant had no arrears of rent as at 31st March 2020 but had not been paying rent since then as she did not recognize his tenancy.

28. According to the landlord, the initial term of tenancy of 3 years expired and the tenant did not apply for its renewal. The landlord gave 6 months notice to the tenant to vacate the suit premises in terms of the lease agreement.

29. On 16th April 2020, another notice was served under section 4(2) of Cap. 301 upon the tenant which was expressed to take effect on 1st July 2020. The same was acknowledged by the tenant on 23rd April, 2020. As such the reference should be dismissed as the tribunal cannot force parties to enter or continue with a tenancy where the term had expired and the landlord was unwilling to renew the tenancy.

30. The landlord deposes that the tenant was a vexatious litigant whose intention is to make her bored and fatigued with unnecessary litigation by filing multiple applications seeking the same relief.

31. She denies issuing illegal notice or threatening to evict the tenant or locking the premises neither has she interfered with his quiet possession or enjoyment of the premises as alleged by the tenant who continued to occupy the premises illegally.

32. It is the landlord’s case that the tenant wants to occupy the premises on his own terms without renewing the tenancy. She maintains that the suit premises were in a sorry state of dispair and she wishes to carry out extensive renovations to the sewerage system/toilets and a complete replacement of the leaking roof.

33. The landlord further deposes that she intends to occupy the premises comprised in the tenancy for purposes of carrying out a business for a period of not less than a year after all the renovations and repairs have been completed which is the reason for not extending the tenancy agreement.

34. The landlord filed a motion dated 16th July 2021 seeking for an order of recovery of possession of the premises and ejectment of the tenant for failure to comply with the court orders issued on 15th July 2020 and an order of discharge of the orders issued on 15th July 2020.

35. The application is supported by the landlord’s affidavit sworn on 16th July 2021 and the grounds on the face of the application. The grounds are that the tenant failed to pay rent in terms of the tribunal order of 15th July 2020 and continued occupation of the premises illegally after expiry of the tenancy agreement on 30th June 2019.

36. It is the landlord’s case that the tenancy expired and no extension or renewal has been granted. The tenant is said to have failed to apply for extension of the tenancy.

37. The tenant was served with a six(6) months notice to vacate the suit premises by the landlord as provided in the lease agreement on 12th August 2019.

38. The tenant approached the Tribunal and after obtaining orders failed to pay rent. The tenant was granted an extension to file a reference out of time. The tenant has failed to pay rent according to the order of the Tribunal.

39. I am now required to determine the following issues:-

(a) Whether there exists a landlord/tenant relationship capable of protection by way of injunction between the landlord and tenant.

(b) Whether the tenancy notice dated 16th April 2020 ought to be upheld or dismissed.

(c) Who is liable to pay costs of the suits?.

40. The relationship between the two parties herein started pursuant to a tenancy agreement dated 28th June 2016 for a stipulated period of 3 years. According to the landlord the tenancy period expired on 30th June 2019 and the tenant did not apply for its renewal as a result of which she issued a six (6) months notice on 12th August 2019 for him to vacate the suit premises.

41. The tenant contends through BPRT No. 358 of 2020 that the said six (6) months’ notice and subsequent notices dated 25th March 2020 and 31st March 2020 are illegal and contrary to provisions of Cap. 301, Laws of Kenya.

42. I have looked at the said notices and note that indeed they are not in the prescribed form as provided under section 4(2) of Cap. 301. As such they are invalid.

43. The landlord filed BPRT NO. 648 OF 2020 complaining that the tenant had failed to pay Kshs.68,500/- as at 2nd July 2020. She sought to levy distress and vacant possession.

44. I have perused the court file and have not come across any affidavit of service in respect of both the application and reference. In absence of such evidence, I am unable to grant the orders sought in line with the principle of natural justice that no man shall be condemned unheard.

45. In Nairobi BPRT NO. 665 of 2020, the tenant is seeking for restraining orders against the landlord from interfering with his quiet occupation and lawful enjoyment of the suit premises pending hearing and determination of the suit. She further seeks for a period of 12 months after Covid -19 pandemic so that she can keenly and carefully remove whatever belongs to her in terms of improvements without interfering with the premises.

46. The application and reference were precipitated by a termination notice dated 6th April 2020 in which the landlord seeks termination of the suit. She further seeks for a period of 12 months after Covid-19 pandemic so that she can keenly and carefully remove whatever belongs to her in terms of improvements without interfering with the premises.

47. The application and reference were precipitated by a termination notice dated 6th April 2020 in which the landlord seeks termination on the grounds that:-

(1) “Tenancy agreement has expired and has not been renewed.

(2) I wish to renovate the premises which does not have proper toilets and the roof needs total replacement since it is leaking”.

48. The notice was expressed to take effect on 1st July 2020. In response, the tenant filed a reference dated 31st March 2020 wherein she states as follows:-

“The complaint concerns the landlord that he intends to evict me from the said premises illegally contrary to Cap. 301, Laws of Kenya. However, I wish to use the premises for a period of one year”.

49. It is clear therefore from the reference that the tenant did not dispute the grounds set out in the termination notice which is in the prescribed form save that she requests for a one (1) year grace period to vacate.

50. In the premises, the termination notice is for allowing moreso considering the fact that one (1) year from the date of reference ended on 31st March 2021. No reason has been advanced by the tenant to show that the intended repairs are not genuine or necessary.

51. In the circumstances, the final orders that commend to me under section 9 and 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act are as follows:-

(a) The tenant is not entitled to further protection by way of injunction in view of expiry of the one (1) year grace period sought by him in the reference dated 31st March 2020.

(b) The termination notice dated 6th April 2020 is hereby upheld.

(c) The tenant shall within the next Thirty (30) days from the date hereof vacate the suit premises being L.R. NO. 599/5 Kirigiti, Kiambu county failing which he shall be evicted by a licenced auctioneers who shall be provided with security by the OCS Kiambu Police Station.

(d) The tenant shall pay all the rent in arrears forthwith failing which the landlord shall be at liberty to use lawful means to recover the same without any further orders of this Tribunal.

(e) Each party shall meet own costs of these proceedings.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28TH DAY OF JANUARY 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

IN THE PRESENCE OF:

MISS MWANIKI FOR THE LANDLORD

NO APPEARANCE FOR THE TENANT