[2022] KEBPRT 176 (KLR)

Sitati v Chelekesi (Tribunal Case 43 of 2021) [2022] KEBPRT 176 (KLR) (Civ) (10 June 2022) (Judgment)

Neutral citation: [2022] KEBPRT 176 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 43 of 2021

Gakuhi Chege, Vice Chair

June 10, 2022

Between

Erick Wafula Sitati

Applicant

and

Kennedy Waliaula Chelekesi

Respondent

Judgment

1. By a tenancy notice dated 6th April 2021, the landlord seeks to terminate the tenant’s occupation of the suit premises on the ground that the latter had refused to pay rent and was by then in arrears of Kshs.96,000/-. He therefore seeks for an order for payment of rent arrears and vacant possession of the suit premises.

2. In opposition to the notice, the tenant referred the matter to this Tribunal under Section 6 of Cap. 301, Laws of Kenya vide a reference dated 26th April 2021 attaching his supporting affidavit sworn on the same date stating that he was a beneficiary in the land parcel. He deposes that the landlord was a cousin to his late father one Richard Sitati and that the former bought a plot from his late father measuring 15 x 100 ft but constructed on a portion measuring 30x100ft thereby trespassing on the tenant’s alleged plot.

3. The tenant deposes that he has occupied one door in the suit premises for 20 years but the landlord intended to sell the building on the plot owned by him which fell on the tenant’s portion yet he had not purchased it.

4. It is the tenant’s case that he would stay on the plot until the landlord pays for it in full.

5. Both parties were directed to file and exchange witness statements and documents for use during the hearing. Both parties complied with the Tribunal’s directions with the tenant filing witness statements by Emmanuel Wanjala, David Wekesa and Timothy Wanjala Wanyama all of whom state that the landlord bought a plot measuring 15 feet by 100ft from Richard Sitati and that Eric Wafula (tenant) was not indebted to the landlord (Kennedy Waliauola as there was a valid contract transferring ownership to the late Richard Sitati upon whose death Eric Wafula (tenant) inherited the said land parcel.

6. On the other hand the landlord filed witnesses statement by Antony Wamumba & Mourice Barasa Watila both of whom state that Eric has been a tenant of Kennedy Waliaula since the year 2000 to the date of writing the statement in February 2022. They state that Kennedy complained to them that Eric had refused to pay rent since the year 2019 claiming that the house belonged to him. According to both witness, Eric has been a tenant of Kennedy Waliaula and has never bought the house from Kennedy. It is their contention that Eric was trying to swindle Kennedy’s property.

7. The landlord filed a list of documents attaching a certificate of official search in respect of Title no. Bokoli/Chwele/1903 measuring 0. 03 hectares showing that he was registered as proprietor thereof from 8th November 2006. The search is dated 28th October 2020.

8. I have also seen a copy of a letter dated 20/9/2019 by Henry W. Munyole and another one dated 14/4/2021. The author is indicated to be Senior Chief Chwele location.

9. The first letter is addressed to Richard Sitati Watila, Mrs. Concephta Mamaemba Chelekesi and Kennedy Waliaula Chelekesi wherein it is stated that one Richard Sitati Watila sold part of his the plot measuring 50x100 feet to Concephta Mamaemba Chelekesi who gave the plot to his son one Kennedy Waliaula Chelekesi. The latter constructed a building on the plot measuring 30x100 feet. This prompted amicable settlement by the family whereby the son of Richard Sitati has occupied one door in the premises for the last 20 years and that it was suspected that Kennedy planned to sell the plot which caused the matter to move to the chief’s office. It was decided that the land and house be sold with Richard Sitati and Concephta Mamaemba sharing the price of land with Kennedy Waliaula getting the price of the building but the latter declined. No agreement or proceedings were exhibited in that regard.

10. The second letter is addressed to this Tribunal’s inspector wherein it is stated by the same Chief that the disputants herein were blood cousins and that the father of Eric Waliaula died in 2021 whereupon the landlord started complaining about non-payment of rent. The deceased is said to have sold the plot to the former’s mother where the former constructed one door and that later an agreement was reached whereby the landlord constructed another door on the unpurchased plot of the tenant’s father and that money for the said plot was to be paid later which did not happen. The tenant was to stay in the premises until the money for the plot is paid which explains his presence in the plot.

11. Both parties testified before me with the landlord starting. According to the landlord, the tenant was in occupation of his plot no. 1903, Chwele Market. It was his evidence that the tenant had stayed for 3 years without paying rent. The monthly rent was Kshs.4000/-. He was therefore claiming Kshs.144,000/-.

12. In cross-examination by the tenant, the landlord confirmed that he had purchased a plot measuring 15 x 100 ft from Japhet Sitati and was added 15 feet in the frontage with the length being reduced to 85 feet. He obtained title deed and built on the plot without any objection. Although his mother paid the purchase price, the landlord built on the plot.

13. On his part, the tenant relied on witness statements and the affidavit filed in the matter as well as documents presented. He testified that he was at one time a tenant of the landlord herein.

14. The tenant testified that the premises was locked by Kennedy (landlord) in May 2019. He confirmed that there was an elders arbitration which resolved that each of them was to occupy own space but he was unable to move as the landlord had built on it.

15. The tenant stated that he had not sued the landlord in a court of law for alleged trespass. He however stated that he had not paid rent since June 2019. He had no title for the portion he was claiming.

16. On cross examination by the landlord, the tenant confirmed that the house built on the suit plot belonged to him. He did not object to the developments on the land and had not gone to court to seek cancellation of the title held or by the landlord.

17. According to the tenant, the landlord should remove his building from the suit plot which he alleged to have inherited from his father who died in January 2020. He adamantly stated that he could not pay rent.

18. I am now required to determine the following issues:-(a)Whether there exists a landlord/tenant relationship between the two parties.(b)Whether the tenancy notice served upon the tenant should be upheld or dismissed.(c)Who is liable to pay costs of the reference?.

19. The landlord testified that he owned plot no. 1903, Chwele Market. Among the documents presented before this Tribunal is a certificate of official search dated 28th October 2020 showing that the suit plot was registered in his name on 8th November 2006. It measures 0. 03 hectares. The landlord stated that he is the one who put the tenant into possession of the suit premises at an agreed monthly rent of Kshs.2500/- which was later increased to Kshs.4,000/-.

20. The tenant confirmed in his evidence that he was at one time the tenant of the landlord and the house built on the suit plot belonged to the latter. He stated that he paid rent until May 2019 but he had paid none from June 2019. He did not have a title for the portion claimed by him.

21. It was also admitted by the tenant that there was no case challenging the landlord’s title in any court of law and that he had been directed by elders who arbitrated on the matter to move to his own plot. He also confirmed that he did not object to the developments done by the landlord when the same were being put up. His father died in January 2021 and no evidence was tendered to show that there was any dispute between him and the landlord prior to his death.

22. It is clear that the tenant entered into the suit premises with the consent of the landlord and while there, he decided to stake a claim of ownership of a portion thereof claiming that the latter occupied and developed a bigger portion of his late father’s land than what he bought. I doubt that he has capacity to do so but since my duty is to determine existence or otherwise of a landlord/tenant relationship, I will stick to that.

23. It is my view that as the registered proprietor of the suit plot, the landlord is entitled to all the rights and privileges conferred by such registration including the rental income and possession thereof under sections 24 & 25 of the Land Registration Act, 2012.

24. Section 121 of the Evidence Act, Cap 80 Laws of Kenya provides as follows:“No tenant of immovable property or person claiming through such tenant, shall during the continuance of the tenancy be permitted to deny that the landlord of such tenant had at the beginning of the tenancy a title to such immovable property and no person who came upon any immovable property by the license of the person in possession thereof shall be permitted to deny that such person had a right to such possession at the time when the license was given”.

25. It is not in dispute that the tenant was put into possession of the suit premises by the landlord and is thus estopped from denying his title. I therefore find and hold that the landlord has established a controlled tenancy between him and the tenant herein..

26. On the second issue, the tenant admitted that since June 2019, he has not paid rent to the landlord. The rent payable per month was initially agreed at Kshs.2500/-. I have not seen any notice of increment of rent under Cap. 301 to warrant me to hold that the said rent ever changed to Kshs.4000/- per month.

27. There is no good reason given by the tenant why he has not been paying rent, the landlord was therefore justified to terminate his tenancy on the ground of non payment of rent as stipulated under section 7(1) (b) of Cap. 301. He maintained at the hearing that he was not ready to pay rent to the landlord and required the landlord to remove the building erected on the suit plot on the grounds that he had a beneficial interest thereon. This is a tenant whose tenancy is unsustainable.

28. I did not believe the witnesses who recorded statements in favour of the tenant’s case. Their statements appear to be choreographed as the same is copied word for word for each of them. Their position is not backed by the title document produced by the landlord.

29. In regard to costs, the same are always in the court’s discretion but always follow the event. I have no reason to deny the landlord his costs.

30. In conclusion therefore, the orders that commend to me are:-(i)There exists a landlord/tenant relationship between the two parties herein over the commercial premises erected on title no. Bokoli/Chwele/1903 which is a controlled tenancy under Cap. 301, Laws of Kenya.(ii)The landlord’s notice to terminate tenancy dated 6th April 2021 is hereby upheld.(iii)The tenant is liable to pay Kshs.90,000/- being 36 months rent at Kshs.2500/- per month from June 2019 to June 2022 both months inclusive.(iv)The tenant shall vacate from the suit premises forthwith and in default shall be evicted therefrom by a licensed auctioneer who shall be provided with security by the OCS Chwele Police Station.(v)The landlord is awarded Kshs.20,000/- as costs of the reference against the tenant.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10TH DAY OF JUNE 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling read in absence of the parties.