[2022] KEBPRT 756 (KLR)

Wakulo v Nyangweso (Tribunal Case E045 of 2022) [2022] KEBPRT 756 (KLR) (Civ) (30 September 2022) (Judgment)

Neutral citation: [2022] KEBPRT 756 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E045 of 2022

Gakuhi Chege, Vice Chair

September 30, 2022

Between

Ramadhan Mumia Wakulo

Applicant

and

Ramadhan Nyangweso

Respondent

Judgment

1. On January 10, 2022, the landlord herein issued a tenancy notice under section 4(2) ofcap 301, seeking to terminate the tenant’s tenancy with effect from April 1, 2022 on the grounds that he wants to do major renovation to the business premises and required the tenant to pay all rent arrears and vacate therefrom.

2. According to the affidavit of service of Masinde Mukosi Justus sworn on February 23, 2022, the tenancy notice was served on February 19, 2022 upon the tenant.

3. It is the landlord’s case that the tenant ignored the said notice as a result of which he filed a motion dated April 21, 2022 seeking an order of eviction against the respondent from plot No 19A Bulimbo market and that the OCS, Harambee police station do ensure compliance.

4. The landlord through his supporting affidavit sworn on April 21, 2022 deposes that he was served with a notice to renovate the building by the ministry of infrastructure, public works and energy marked ‘RMW-1’. He issued notices upon the tenants to vacate the premises to enable him comply with the orders of county government of Kakamega and all the other tenants except the respondent complied.

5. He deposes that the premises are in a bad state and required renovation as evidenced by annexure ‘RMW-3’. It is thus sought that the tenant be evicted for the ends of justice to be met.

6. The application is opposed through a replying affidavit sworn by the respondent on May 27, 2022 wherein it is deposed that he leased the suit premises from one Ibrahim Wekulo Murunga in terms of annexure ‘RN-001’. The landlord passed away in 2021 and the tenant received a letter from the eldest son of the deceased known as Salim Wekulo notifying him that the said son had taken over management of the shop and rent was to be paid directly to him as evidenced by annexure’RN-002’. The tenant therefore started paying rent to the said son from June 2021. Upon receipt of notice to terminate tenancy, the tenant sought clarification from the said son who maintained that he was in charge of the shop and the applicant herein had no business asking him to vacate.

7. Attached to the replying affidavit as annexure ‘RN-003’ is an affidavit sworn by Salim Wekulo on May 25, 2022. As such the tenant maintains that the applicant has never been his landlord and that the latter had not produced any documentary evidence to proof existence of alleged landlord/tenant relationship. No proof of ownership of the shop has been produced.

8. According to the tenant, the applicant did not issue him with any notice to vacate the shop which in any event would have been null and void for lack of authority.

9. The respondent questions how the ministry of infrastructure issued notice to renovate upon the applicant who was not the owner of the premises.

10. The respondent deposes that he has never paid rent to the applicant and had no tenancy with him.

11. The applicant filed a further affidavit sworn on July 4, 2022 stating that the rental agreement attached to the replying affidavit was a forgery as the signature thereon did not resemble that of his late father and that the respondent did not raise any claim in respect of the estate when the original landlord died during his burial.

12. The applicant deposes that the tenant has been paying rent to him after death of the original landlord as evidenced by annexure ‘RMW1’ and that Salim Wekulo has never collected any rent from the respondent.

13. It is the applicant’s case that Salim Wekulo was not allocated the building subject matter hereof as he was given a lorry registration number KAS 459M jointly with Mwajuma Wekulo as per family meeting minutes marked ‘RMW2’ as part of their inheritance. Salim Wekulo later sold the lorry to Mwajuma Wekulo as per annexure ‘RMW4’.

14. Plot no. 19 which is the subject matter hereof was given to the applicant and Ismael Wekulo Ibrahim as evidenced by annexure ‘RMW5’.

15. The matter was directed to be canvassed through written submissions but only the respondent complied. The issues for determination in this case are:-a.Whether there exists a landlord/tenant relationship between the parties.b.Whether the applicant is entitled to the reliefs sought herein.c.Who is liable to pay costs of the suit?

16. It is not in dispute that the tenant herein took possession of the suit premises from one Ibrahim Wekulo Murunga who is the deceased father of the applicant. What is in dispute is who took over upon death of original landlord, the management of the shop premises occupied by the tenant between the applicant and his brother one Salim Wekulo. The original landlord is said to have died in April 2021 and the said Salim Wekulo allegedly wrote a letter dated May 28, 2021 notifying the tenant to be paying rent directly to him with effect from June 5, 2021.

17. In the affidavit of Salim Wekulo annexed as ‘RN-3’, it is deposed that after death of his father, the family sat down and agreed that he takes over the management of the shop owned by the respondent herein. He therefore wrote to the tenant to be paying rent directly to him and was surprised to know that the tenant was issued with a notice by his brother who had no capacity to do so. The matter was pending before Kadhi’s Court at Kakamega according to paragraph 12. He contradicts himself in paragraph 13 wherein he deposes that the matter was pending before the Kadhi’s Court at Bungoma.

18. Although the said Salim Wekulo deposes that he has been receiving rent from the tenant, no evidence is exhibited to prove the same.

19. On the other hand, the applicant has exhibited through his further affidavit receipts for rent payment by the Respondent in respect of the months of August, September, October and November 2021. He has also annexed minutes of family meeting held on July 21, 2021 by the family of the late landlord which was also attended by Salim Wekulo wherein plot No 19 was given to Ismael Chitechi and Ramadhan Mumia Wekubo (applicant). The only issue raised in the respondent’s submissions regarding the said minutes is that they are not signed by each beneficiary.

20. Based on all the materials placed before me, I find that the applicant has proved on a balance of probabilities that he is the landlord of the tenant/respondent herein as opposed to the allegation that Salim Wekulo is his landlord. I am however not sitting as a probate court and my finding on the issue does not determine who is eventually entitled to inherit the suit property which shall be determined in the appropriate forum.

21. In the case of Palace Investment Limited v Geoffrey Kariuki Mwenda& another (2015) e KLR, the judges of the Court of Appeal cited Denning J. in Miller v Minister of pensions (1947) 2 All ER 372 on the burden of proof in civil cases thus:-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the Tribunal can say, we think it more probable than not, the burden is discharged, but if the probability are equal, it not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a Tribunal cannot decide one way or the other which evidence to accept, where both parties………are equally (unconvincing), the party bearing the burden of proof will lose, because the requisite standard will not have been attained”.

22. I am convinced that the applicant has proved on a balance of probabilities that he is the landlord of the respondent herein and the person entitled to collect rent and manage the business premises in the tenant’s occupation. As such, I find that their is a landlord/tenant relationship between the parties herein.

23. As to whether or not the applicant is entitled to the reliefs sought herein, I note that there is no dispute that the tenant was issued with the tenancy notice marked ‘RMW’-2 which is in the prescribed form as required under section 4(2) of cap301, Laws of Kenya. No reference was filed under section 6(1) of the said Act and pursuant to section 10 thereof, the notice took effect on April 1, 2022. The reasons given in the notice have not be contested save on the basis that the issue of the notice was not the respondent’s landlord.

24. Section 10 of Cap 301 provides as follows:-“Where a landlord has served a notice in accordance with the requirements of section 4 of this Act, on a tenant and the tenant fails within the appropriate time to notify the landlord of his unwillingness to comply with such notice or to refer the matter to a tribunal, then subject to section 6 of this Act, such notice shall have effect from the date therein specified to terminate the tenancy or terminate or alter the terms and conditions thereof or the rights or services enjoyed thereunder”.

25. Having failed to oppose the notice to terminate tenancy as required underCap 301, Laws of Kenya, the tenant’s tenancy terminated by dint of section 10 thereof and the tenant is liable to give vacant possession of the suit premises or be evicted therefrom under section 12 (1) (e ) of the Act. As such the landlord is entitled to the reliefs sought in the suit.

26. As regards costs, the same are in the Tribunal’s discretion under section 12(1)(k) of Cap 301 but always follow the event unless for good reasons otherwise ordered. I have no reasons to deny the landlord costs.

27. In conclusion therefore, the final orders which commend to me are:-a.There exists a landlord/tenant relationship between the applicant and respondent herein over the business premises on plot No 19A, Bulingo Market.b.The tenancy notice served upon the tenant by the landlord dated January 10, 2022 is hereby upheld and the tenancy herein is deemed as duly terminated.c.The tenant shall forthwith deliver vacant possession of the demised premises and in default shall be evicted therefrom by a licensed auctioneer who shall be provided with security by OCS, Harambee police station during the exercise.d.The costs of this suit assessed at Kshs 25,000/- are awarded to the landlord against the tenant.It is so ordered.

RULING SIGNED & DELIVERED VIRTUALLY THIS 30TH DAY OF SEPTEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:-Tenant presentLandlord present