[2021] KEBPRT 315 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 8 OF 2019 (KISII)

ROBERT AYIEKO ANGOI.................................................LANDLORD/RESPONDENT

AND

LENA SARANGE ...........................................................................TENANT/APPLICANT

RULING

Parties and Their Representative

1. The Landlord/ Respondent Robert Ayieko Angoi, is suing in his capacity as the landlord of the suit premises on land Title Number KISII TOWN BLOCK 111/85 (herein after referred to as the ‘Landlord’).

2. Learned Counsel Aboki Begi Co. Advocates represents the Respondent/Landlord.

3. The Tenant/ Applicant, Lena Sarange is sued on behalf of Japhet Omwenga Makworo (Deceased) who rented space on land Title Number Kisii Town Block 111/85 for the business (herein after referred to as the ‘Tenant’)

4. The Tenant, Lena Sarange is represented by A. N. Moruri & Advocates. anmoruriadvocates@gmail.com

The Dispute Background

5. The dispute arose from a Notice of Termination of Tenancy issued by the Landlord/Respondent to the Tenant on 26th October 2018. On 31st March 2019this Tribunal wrote to the Tenant informing her that the Notice had lapsed on 1st December 2018. On 22nd February 2019 the Respondent/Landlord appeared before this Tribunal with information that the Tenant had failed to file a reference to the Notice as required by section 6 (1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.

6. Vide a Ruling this Tribunal issued orders that the Landlord evict the Tenant with the assistance of O.C.S. Kisii Police Station. The Tenant filed an application dated 25th February 2019 seeking a stay of execution and setting aside of the eviction orders. On 26th February, 2019 this Tribunal granted a stay of execution and fixed the matter for hearing on 1st March 2019 however, it did not proceed for hearing and was rescheduled to 11th March 2019 when this Tribunal extended the orders for stay of execution and ordered that both parties put their padlocks on the door of the premises. This Tribunal issued witness summons to Johnson Nyakundi Kingoina and Joseph Gateri Kingoina to attend court on 22nd March 2019. The hearing did not proceed on 22nd March 2019 and was put off to 12th April 2019.

7. On 12th April 2019 this Tribunal made orders that: orders for stay of execution be set aside; the Respondent/Landlord to have the premises reopened and continue with his business; the O.C.S. Kisii Police Station to enforce compliance of orders; and that the matter be mentioned on 31st May 2019 on the issue of costs of the Tenant, Lena Sarange and compensation for loss of Tenancy.

8. The Tenant/Applicant proceeded to file Appeal to the Environment and Land Court over the orders issued on 12th April 2019. In E.L.C. Appeal No. 12 of 2019 the Environment and Land Court issued judgement dated 20th May 2020 established that:

a) This Tribunal failed to resolve the issue of whether a tenancy relationship existed between the parties.

The Court further noted that the Applicant’s Late husband entered into a sublease agreement in respect of a room situated on 1st Floor on land Title Number Kisii Town Block 111/85 from 1st May 2015 to 30th April 2022 with Techno Tech International Trading Co. Ltd represented by Joseph Geteri Kingoina while the Respondent entered into a lease agreement with Joseph Geteri Kingoina in respect of 16 rooms on the 2nd Floor and a bar/ hotel area on the 1st Floor of land title Number Kisii Town Block 111/85. The bar/hotel area on 1st Floor is the premises in contention leased out to both the Applicant and Respondent.

b) This Tribunal failed to give reasons for the decision to order that the premises be reopened and that the Respondent take possession of the same and continue with his business therefore giving an impression that the decision was not supported by evidence.

c) It would not be practical to set aside the orders issued on 12th April, 2019 and reinstate the Applicant as the owners of the premises had already leased the premises to the Respondent. The Applicant’s only recourse is in damages for loss of tenancy.

d) The Applicant is at liberty to sue the owners of the premises for a refund of the unutilized rent and general damages for breach of lease agreement.

9. The Court ordered that the matter be referred back to the Tribunal for assessment of the Applicant’s damages for loss of Tenancy.

10. The Tenant/Applicant filed an application dated 4th December 2020 seeking that this Tribunal:

a) Be pleased to assess damages for loss of tenancy; and

b) The cost of the application be borne by the Respondent.

Jurisdiction

11. The Jurisdiction of this tribunal is not in dispute.

The Tenant’s Claim

12. The Applicant has filed an application dated 4th December 2020 vide a Notice of Motion Application under certificate of urgency and supporting affidavit dated 4th December 2020, these pleadings form the basis of the claim.

The Landlord’s Claim

13. The Landlord did not file a reply to Tenant’s Application or submissions in opposition of the same

Matters Not in Dispute

14. There is no dispute that the Respondent evicted the Applicant per the orders of this Tribunal on 12th April 2019. The Respondent is in possession of the disputed premises.

15. There is no dispute that the Tenant was in possession of the premises from 1st May 2015 until the date of eviction having executed a lease agreement dated 1st May, 2015 with Techno Tech International Trading Co. Ltd represented by Joseph Geteri Kingoina for a term of 7 years from the 1stday of May 2015 to 30th April 2022.

List of Issues for Determination

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

a) Whether this Tribunal has jurisdiction to assess and award damages for loss of tenancy?

b) How much is the Applicant entitled to as an assessment of damages for loss of tenancy?

Analysis and Findings

Whether this Tribunal has jurisdiction to assess and award damages for loss of tenancy

17. I have considered the Applicant/Tenant’s Application dated 4th December, 2020the Environment and Land Court judgement dated 20th May, 2020 and the evidence before this Tribunal.

18. I note that the Environment and Land Court in Appeal No. 12 of 2019 allowed the appeal against the orders issued by this Tribunal on 12th April, 2019 and referred the matter back to this Tribunal for assessment of the Tenant’s damages for loss of tenancy.

19. I am therefore bound by the decision of the ELC court and find that this Tribunal has the jurisdiction to assess the Tenant’s damages for loss of Tenancy.

20. Indeed the jurisdiction of the Business Premises Rent Tribunal is governed by the Landlord and Tenant Shops Hotels and Catering Establishments Act Cap 301. The preamble to the Act states that:

“It is an Act of Parliament to make provisions with respect to certain premises for the protection of tenants of such premises form eviction or from exploitation and for matters connected therewith and incidental thereto.”

21. Section 12 (l) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 Laws of Kenya provides that the Tribunal has jurisdiction to:

12 (l) 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;

22. In light of the foregoing, this Tribunal is clothed with the jurisdiction to hear and determine this matter on assessment of the Tenant’s damages for loss of tenancy.

How much is the Applicant entitled to an assessment of damages for loss of tenancy?

23. I concur with the Environment and land court on the finding that the Applicant’s Late husband entered into a sublease agreement in respect of a room situated on 1st Floor on land Title Number Kisii Town Block 111/85 from 1st May 2015 to 30th April 2022 with Techno Tech International Trading Co. Ltd represented by Joseph Geteri Kingoina while the Respondent entered into a lease agreement with Joseph Geteri Kingoina in respect of 16 rooms on the 2nd Floor and a bar/ hotel area on the 1st Floor of land Title Number Kisii Town Block 111/85. The bar/hotel area on 1st Floor is the premises in contention leased out to both the Applicant and Respondent.

24. I note that the Respondent/Landlord entered into a lease agreement with Joseph Geteri Kingoina while the Applicant/Tenant entered into a sublease agreement with Techno Tech International Trading Co. Ltd represented by Joseph Geteri Kingoina over the disputed premises on 1st Floor of land Title Number Kisii Town Block 111/85. The upshot of this is that the Respondent by implication became a ‘landlord’

25. Further, the Respondent assumed the role of the landlord by undertaking the following acts:

a) Issuing a Notice of Termination of Tenancy issued by to the Tenant on 26th October 2018;

b) Filing a reference against the Tenant/Applicant;

c) Seeking eviction orders against the Tenant/Applicant; and

d) Evicting the Tenant from the disputed property as per the orders of the Tribunal issued on 12th April 2019 thereby terminating her tenancy.

26. As a result of the Respondent’s actions, the Tenant suffered loss of Tenancy for a future period of Two (2) years as the tenancy term was for 7 years beginning 1st May 2015 and ending 1st May 2022.

27. The Tenant appealed against the orders issued by this Tribunal on 12th April 2019 in Environment and Land Court E.L.C. Appeal No. 12 of 2019 wherein the Court ordered that the matter be referred back to the Tribunal for assessment of the Tenant/Applicant’s damages for loss of Tenancy. This Tribunal is bound by the judgement of the Environment and Land Court in its totality.

28. Vide Application dated 4th December 2020 the Applicant sought orders that this Tribunal be pleased to assess damages for loss of tenancy as against the Respondent.

29. I will therefore delve into the issue of assessment of damages for loss of tenancy.

30. The term damages was defined In the case of Antique Auctions Ltd v Pan African Auctions Ltd [1993] eKLRwhere the Court of Appeal defined the term damages according to the McGregor book on Damages as follows:

The definition of the term, “damages” is set out in McGregor on Damages Fithteenth Edition paragraph 1 as:

“pecuniary compensation, obtainable by success, for a wrong which is either a tort or a breach of contract, the compensation in the form of a lump sum which is awarded unconditionally, and is generally, but now not necessarily, expressed in English currency.”

31. Damages may be in the form of general damages or special damages however; the Tenant has failed to specify the category of damages that she seeks.

32. Special damages have to be specifically pleaded and strictly proved by evidence. This would include the costs incurred by the Tenant as a result of the eviction or specific damage to property that was in the premises during the eviction.

33. The Court of Appeal stated its position on specific damages in the case of Richard Okuku Oloo vs South Nyanza Sugar Co. Ltd [2013] eKLR as follows:

“We agree with the learned judge that a claim for special damages must indeed be specifically pleaded and proved with a degree of certainty and particularity but we must add that, that degree and certainty must necessarily depend on the circumstances and the nature of the act complained of.”

34. The Tenant has neither specifically pleaded special damages nor has she tendered evidence in support of special damages, therefore this Tribunal will not delve into assessing the same. The claim of 288,000/-the closest to special damages I am guided by the high court decision that they can file a claim for a refund as against the landlord who are not parties hereto.

35. While differentiating between special and general damages the Court of Appeal in the case of Antique Auctions Ltd v Pan African Auctions Ltd [1993] eKLRstated that:

Compensation for a wrong committed could be claimed as general damages or special damages. In general damages compensation cannot be quantified but will be assessed by the court. In the case of special damage, such claim of the loss must be specifically pleaded and strictly proved. Proof of damages is by evidence and the Court will decide each case on balance of probability.

36. I will proceed to discuss the issue of general damages. General damages are compensation awarded by a Tribunal or Court as an assessment arrived at by considering the total effect of the loss suffered by the Applicant hence cannot be quantified by the Applicant but assessed by the Tribunal or Court while taking into account various factors. Thus need not be specifically pleaded or proved by an Applicant.

37. Section 4of theLandlord and Tenant Shops Hotels and Catering Establishments Act Cap 301states that:

4 (2)A landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form.

4(4) No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party, as shall be specified therein

38. In the case of South C Fruit Shop Limited v Housing Finance Company of Kenya Limited [2013] eKLR the court cited the case of Caledonia Supermarket Ltd v Kenya National Examination Council [2000] 2 EA 351 and stated that:

The court differently constituted considered a case on the termination of a controlled tenancy. In that case, the Kenya National Examination Council, who was the appellant, had acquired property upon which Caledonia Supermarket Ltd, the respondent, was carrying on the business of a supermarket. The tenancy held by the respondent was a controlled tenancy. The court held that in order to terminate a controlled tenancy, the appellant had to comply with section 4 of the Landlord and Tenant (Shops, Hotels & Catering Establishments) Act.

39. The High Court having found that on the very least the tribunal should have resolved the issue of the relationship between the two parties and having not done so and being unable to practically set aside orders of 12th April, 2019 and reinstate the Appellant in the premises as there is a third party in occupation their recourse is only in damages for loss of tenancy thus proceeded to refer the same here for assessment of the same.

40. In the absence of a two months’ Notice of Termination of Tenancy I find that the Tenant is entitled to two month’s rent in lieu of notice. I have considered the evidence placed before this tribunal over payment of rent of KShs 48,000/= per month over the disputed premises, which fact was not disputed by the Landlord/Respondent. Therefore, this Tribunal awards two month’s rent in lieu of notice at KShs 96,000/=

ORDERS

For the reasons given above I ORDER as follows, that:

a) Two month’s rent in lieu of Notice of Termination of Tenancy of KShs 96,000/= awarded to the Tenant/Applicant

b) The Landlord/Respondent shall bear the costs of this application assessed at 20,000/-.

HON. A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered this 6th day of September 2021 in the presence of Nyabutiholding brief for Begi (Landlord) and Anita Ndukuhire for the Tenant.

HON. A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL