Achieng v Masinde [2022] KEBPRT 723 (KLR)

Achieng v Masinde (Tribunal Case E052 of 2022) [2022] KEBPRT 723 (KLR) (Civ) (20 September 2022) (Judgment)

Neutral citation: [2022] KEBPRT 723 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E052 of 2022

Gakuhi Chege, Vice Chair

September 20, 2022

Between

Pauline Achieng

Applicant

and

Victoria Masinde

Respondent

Judgment

1. The landlord herein served a tenancy notice dated March 11, 2022 seeking to terminate the tenant’s occupation of the suit premises with effect from June 1, 2022 on grounds that she wanted to demolish the semi-permanent structures and construct permanent ones which cannot be done while the tenant is in occupation.

2. The tenant filed a reference under section 6(1) of cap 301 dated May 30, 2022 in opposition to the said tenancy notice. The reference was fixed for directions on June 2, 2022 when this tribunal directed its rent inspector to visit the suit premises and establish whether it was possible to erect the perimeter wall intended to be put up by the landlord without affecting the kiosk operated by the tenant. The rent inspector was also to establish whether the tenant had water, electricity and access to the toilet facilities within the landlord’s premises.

3. The rent inspector visited the suit premises on June 17, 2022 and filed her reportinter-alia confirming that the perimeter wall intended to be built by the landlord will interfere with the tenant’s kiosk. She also confirmed that there was a water tap being used by all the tenants, there was electricity in the tenant’s premises and that the toilet facilities were in bad state for human use.

4. On July 29, 2022 the landlord filed a list of documents dated July 22, 2022 annexing among other exhibits the approved drawings and development plan for the construction of the perimeter wall from the County Government of Bungoma, payment receipts are also attached.

5. The landlord filed witness a statement pursuant to directions given on June 20, 2022 for both parties to comply with order 11 of the Civil Procedure Rules and the matter was set down for hearing on August 1, 2022.

6. On August 1, 2022, when the matter came up for hearing virtually, the tenant did not attend neither had she filed her compliance documents as directed on June 20, 2022. The landlord’s counsel indicated that his client will rely on the witness statement filed in court.

7. I am now required to determine the following issues:-a.Whether the landlord’s tenancy notice ought to be upheld or dismissed.b.Who is liable to pay costs?

8. The tenancy notice was served pursuant to section 4(2) of cap 301, laws of Kenya and is in the prescribed form. The tenant in compliance with section 6(1) of cap 301 filed a reference in the prescribed manner and form.

9. Although the tenant objected to the tenancy notice, she had not filed her witness statement and neither did she attend court on the hearing date. On the other hand, the landlord attended court and complied with order 11 of the Civil Procedure Rules, 2010. Her evidence as contained in the witness statement and documents have not been controverted. I have looked at the witness statement and the documents filed by the landlord and I am satisfied that she has demonstrated her intention to undertake construction of a perimeter wall which cannot be done without affecting the premises occupied by the tenant.

10. I have also considered the report by the rent inspector of the tribunal which clearly states that the proposed construction of perimeter wall will affect the business premises in occupancy of the tenant herein. It therefore means that the tenancy notice served by the landlord was necessary before commencing construction in line with section 4(2) of cap 301, laws of Kenya.

11. Pursuant to section 9(1)(a) of cap 301 Laws of Kenya, I proceed to uphold the landlord’s tenancy notice in view of the foregoing reasons.

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

13. In conclusion therefore, I make the following final orders:-i.The landlord’s tenancy notice dated March 11, 2022 is hereby upheld/approved and the tenant’s tenancy in the suit premises is hereby terminated forthwith.ii.The tenant is directed to immediately deliver vacant possession of the suit premises and in default shall be evicted therefrom by a licensed auctioneer who shall be accorded security by the OCS of the police station within whose jurisdiction the premises are situate.iii.The tenant shall payKshs20,000/- as costs of the reference to the landlord.It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 20TH DAY OF SEPTEMBER 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT PREMISESIn the presence of:Landlady present in personLandlady’s advocate present but muted his microphone