[2022] KEBPRT 109 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 147 OF 2018 (KAKAMEGA)

SILAS OLUCHINA..............................................................................TENANT/APPLICANT

VERSUS

GRACE M. LUYUNDI...............................................................LANDLADY/RESPONDENT

JUDGMENT

1. The Landlord herein served at tenancy notice dated 9th October 2018 upon the tenant seeking to terminate his tenancy over a business premises situate within Kakamega Town with effect from 1st January 2019 on the grounds that she wants to do major renovation to the business premises and acquire vacant possession for her own use.

2. The tenant opposed the notice through a reference dated 6th December 2018 and on 5th October 2018 filed a list of documents attaching previous notices by the landlord in respect of the suit premises.

3. The matter proceeded by way of viva voce evidence with the tenant starting. The tenant adopted his witness statement dated 6th April 2021 as his evidence in this matter.

4. He produced the tenancy notice as P. Exhibit 13 and the reference form as P. Exhibit 12. He stated that he had no other source of income and had been paying rent to the landlord faithfully without default.

5. The initial notice was issued on 5th May 2006 which the tenant produced as P. Exhibit 1. He filed a reference against it which was produced as P. Exhibit 2.

6. In 2008, another notice was served upon the tenant. It was dated 9th July 2008 and produced as P. Exhibit 3. The landlord again served yet another notice on 20th October 2013 which was produced as P. Exhibit 5.

7. On 6th May 2016, the landlord served yet another notice as a result of which the tenant filed a reference. The notice was produced as P. Exhibit 6.

8. The next notice was on 4th December 2017 which was produced as P. Exhibit 7. A reference dated 26th February 2018 was heard and determined and the Tribunal ruled in the tenant’s favour in Kakamega BPRT No. 16 of 2018. The order is annexed to the replying affidavit of the tenant sworn 27th November 2019 filed herein.

9. The tenant produced various orders issued in his favour in the various references filed against the landlord’s aforesaid notices.

10. According to the tenant, the landlord says that she wants to renovate the building, yet she was introducing new tenants into the premises that fall vacant. The tenant is the only one who had been issued with notice to terminate tenancy as no other tenant had moved to this Tribunal to oppose any such notice yet the commercial tenants are 4 in total.

11. The tenant denied in cross-examination that he had broken glasses stating that the same were broken during the 2002/2003 political transition.

12. On her part, the landlord testified that she was a retired civil servant since 2008. She stated that she wanted the tenant to vacate the suit premises and if not “to continue staying” as he had destroyed the house.

13. The tenant had stayed in the premises for many years i.e over 30 years and the landlord wanted her daughter to do business therein as her children were unemployed. She wanted one of them to do business in the suit premises.

14. According to the landlord, the tenant was not a good man as he was paying lesser rent than the others. The others pay over Kshs.20,000/-.

15. In cross-examination, the landlord stated that the tenant pays less rent but promptly and she could not increase rent for him since she did not want him in the premises.

16. I am now required to determine whether to uphold or dismiss the tenancy notice. Secondly, I am required to determine who is liable to pay costs of the reference.

17. In the case of Eldomant Holdings Limited -vs- Ticket Company Limited (2019) eKLR at page 3/3, Justice S. Okong’o had the following to say:-

‘The legislature left no doubt that the Act was enacted for the purposes of protecting tenants. This court must have the said objective in mind while interpreting the Act. The burden was upon the appellant to establish that it had an intention of occupying the suit premises for a period of not less than one year for the purposes of its own business. In the case of Auto-Engineering -vs- Gonella (1978) KLR 248, it was held that the onus is on the landlord to establish a firm and settled intention to occupy the suit premises”.

18. In the present case, there was absolutely no evidence tendered by the landlord to prove that she intended to undertake repairs and the nature of repairs intended. She did not produce any photographs or approvals of the intended repairs. It is trite law that he who alleges must prove and the landlord was unable to do so.

19. Secondly, the nature of business that she intended to carry out in the suit premises is not disclosed by the evidence tendered. The name of her family member who is to run such business was not given and the landlord was very casual in her approach to this case.

20. Indeed, coupled with the previous attempts to evict the tenant and the disclosure by the landlord that the tenant was paying lesser rent than the other tenants, I am convinced that the landlord has no genuine intention to do what is expressed in her tenancy notice.

21. In the premises, the following final orders commend to me:-

(i) The tenancy notice dated 9th October 2018 is dismissed and shall have no effect.

(ii) The landlord shall pay the tenant’s costs of the Reference assessed at Kshs.30,000/- which shall be defrayed against the rent account.

(iii) No further tenancy notice shall be served upon the tenant until after expiry of 12 months in terms of Section 9(3) (b) of Cap. 301, Laws of Kenya.

It is so ordered.

JUDGMENT DATED, SIGNED & DELIVERED THIS 21ST DAY OF JANUARY 2022 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Judgment read in absence of both parties.