Abulu v Wilson [2022] KEBPRT 674 (KLR)

Abulu v Wilson (Tribunal Case E057 of 2022) [2022] KEBPRT 674 (KLR) (24 August 2022) (Ruling)

Neutral citation: [2022] KEBPRT 674 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E057 of 2022

Gakuhi Chege, Vice Chair

August 24, 2022

Between

Linet Kanaiza Abulu

Tenant

and

Margaret Wilson

Landlord

Ruling

1. The Tenant/Applicant moved this Tribunal by a complaint under section 12(4) ofCap. 301, seeking for restraining orders against the landlord from evicting, harassing, intimidating or threatening her in respect of a business premises situate within the jurisdiction of County Government of Vihiga. She simultaneously filed a motion seeking the same orders which is supported by affidavit sworn on 2nd June 2022.

2. It is the applicant’s case that the landlord/Respondent had refused to collect monthly rent and had returned money sent via Mpesa. She accuses the landlord of giving a verbal notice to vacate the business premises on 17th May 2022 through the chief’s office.

3. She was allowed to pay rent for that month but the landlord refused to accept the June rent. She deposes that she has no alternative place of business and had not been issued with a proper notice.

4. She contends that the landlord ought to give her enough time to look for a suitable place for business.

5. The Respondent opposes the application and complaint through a replying affidavit sworn on 20th June 2022 wherein she denies that the applicant is her tenant in the premises. Instead, the Respondent contends that the applicant is the wife of Wilson Mukangula who is the actual tenant.

6. On 17th March 2022, the Respondent entered into an agreement with the said Wilson Mukangula in writing wherein the latter agreed to vacate the business premises on 31st May 2022 for purposes of renovation before the Assistant Chief, Mbihi Sub-location. The agreement is marked as annexure ‘LEL-3’.

7. The Respondent therefore denies that she was using the chief to evict the tenant who voluntarily agreed to vacate but changed mind and decided to use his wife to file the instant suit.

8. The Respondent admits having refunded the rent for June 2022 since the tenant was supposed to have vacated for renovation as per the agreement aforesaid.

9. The building materials deposited at the site of the business premises are said to be going to waste as evidenced by photographs marked as annexure ‘LEL-5’.

10. It is the Respondent’s case that the tenant was operating electrical and electronics business contrary to the business permit presented by the applicant showing that the business is retail and Mpesa marked ‘LEL-6’.

11. The Respondent therefore seeks for dismissal of the suit with costs.

12. I am now required to determine the following issues:-(a)Whether the applicant is entitled to the reliefs sought herein.(b)Who is liable to pay costs?

13. The applicant instituted this suit claiming that she was a tenant of the Respondent and annexed a business permit dated 27th May 2022 issued by the County Government of Vihiga in respect of Mpesa and Retail business. She has also annexed a miscellaneous receipt issued on the same date in respect of conservancy charges and an Mpesa message showing payment of Kshs.6100. 00 to Margaret Wilson on 31st May 2022 and another one showing refund of the said amount on the same date. No other rent payment receipt has been exhibited by her.

14. On the other hand, the Respondent has annexed documents showing that one Wilson Mkangula alias Aguya Kazana had agreed to vacate the suit premises within sixty days from 17th March 2022. He was to pay Kshs.12,000/- as rent arrears for the two months and vacate therefrom since the Respondent intended to do major renovations.

15. The Respondent maintains that the applicant is not a tenant in the premises and was being used by her husband who appears to have changed his mind.

16. I note that the applicant upon being served with the replying affidavit did not file a further/supplementary affidavit to controvert the evidence presented by the Respondent in court. It is therefore clear in absence of evidence to the contrary that there is no sufficient material placed before the Tribunal to show that the applicant is a tenant of the Respondent.

17. In absence of a landlord/tenant relationship, I am afraid that the applicant is disentitled to the reliefs claimed in this suit and it is in the interest of Justice to dismiss the case in line with the decision in the case of Pritam v Ratilal & Another[1972] EA 560 at page 562.

18. Under section 12(4) of Cap. 301, this Tribunal is empowered to investigate any complaint relating to a controlled tenancy made to it and make such order thereon as it deems fit.

19. Section 12(1) (e ) of the said Act empowers the Tribunal to make orders upon such terms as it thinks fit for the recovery of possession and for payment of arrears of rent and mesne profits which orders may be applicable to any person whether or not he is a tenant being at any material time in occupation of the premises comprised in a controlled tenancy.

20. In the premises, the applicant having failed to prove that she is a tenant in the suit premises and being a wife of the actual tenant one Wilson Mkangula who had entered into agreement with the landlord to vacate from the suit premises is not entitled to continue occupation of the suit premises and is thus liable to eviction.

21. As regards costs, the same are in the Tribunal’s jurisdiction under section 12(1)(k) ofCap. 301, but always follow the event unless for good reasons otherwise ordered. I have no good reasons to deny the Respondent costs.

22. In conclusion therefore, the final orders that commend to me are:-i.The applicant’s notice of motion application dated 2nd June 2022 and the reference dated 30th May 2022 are hereby dismissed with costs.ii.The applicant and her husband one Wilosn Mkangula alias Aguya Kazana shall immediately deliver vacant possession of the suit premises and in default shall be evicted therefrom by a licenced Auctioneer who shall be provided with security by the OCS, Mbale Police Station.iii.The applicant shall pay costs of Kshs.10,000/- to the Respondent.It is so ordered.

RULING DATED, SIGNED AND DELIVERED BIRTUALLY THIS 24TH DAY OF AUGUST 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence ofTenant/Applicant in personLandlord/Respondent in person