African Inland Tudor v Pwani Breeze Ltd [2022] KEBPRT 812 (KLR)

African Inland Tudor v Pwani Breeze Ltd (Tribunal Case 123 of 2022) [2022] KEBPRT 812 (KLR) (1 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 812 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 123 of 2022

Gakuhi Chege, Vice Chair

November 1, 2022

Between

African Inland Tudor

Applicant

and

Pwani Breeze Ltd

Respondent

Ruling

1. Through a motion dated May 12, 2022, the landlord moved this tribunal seeking for a declaration that the tenancy between it and the respondent had been terminated by the notice dated March 12, 2021. It further seeks that the respondent/tenant do handover vacant possession of the suit premises forthwith and that the OCS Makupa Police Station do provide security.

2. The application is supported by the affidavit of Joshua Nyelele Kithuka sworn on even date and the grounds on the face of the application. The suit premises is situate on land parcel known as Mombasa/Block XI/806 and the respondent is a tenant thereon paying a monthly rent of Kshs 20,000/-.

3. On March 12, 2021, the landlord served the tenant with a 60 days notice of termination of tenancy as per annexures marked ‘FM1 & 2’. The grounds of termination was irregular payment of rent as and when the same falls due and payable.

4. It is deposed that the tenant never objected to the notice as required by the law neither did it make any reference to this tribunal. Despite the lapse of the notice on June 30, 2021, the tenant refused and/or ignored to vacate the suit premises.

5. It also continued to default in payment of rent. It is on the foregoing basis that the instant application was filed together with a reference dated June 30, 2022 seeking the same orders.

6. The application is opposed through a replying affidavit of David Yego sworn on September 20, 2022 wherein it is deposed that the tenant entered into the suit premises more than 15 years ago paying a monthly rent of Kshs 20,000/-.

7. In the year 2019, the landlord sought to increase rent to Kshs 200,000/- per month which was oppressive and the tenant declined to sign the lease agreement. From that time the landlord refused to accept rent.

8. It is deposed that the landlord did not serve the deponent or anyone else with any termination notice as he is the one who manages the business and not AJ Yego.

9. Negotiations were initiated with a view to out of court settlement and the arrears of Kshs 582,900/- was paid in full through the landlord’s advocate as evidenced by annexures “DY (a) & (b)”. There was another case No 137 of 2019 Mombasa in which orders were granted on January 29, 2020 marked “DY3”.

10. On January 31, 2020, the tenant paid Kshs 241,200/- to the landlord vide annexure ‘DY4’. Thereafter, there was Corona outbreak which made the tenant’s business close down.

11. The tenant deposes that it has heavily invested and built structures which includes a perimeter wall that will lead to great loss if required to vacate without compensation.

12. The matter was directed to be disposed of by way of written submissions and both parties complied. I shall consider the submissions together with the issues framed for determination hereunder.

13. From the pleadings, the following issues arise for determination:-a.Whether the landlord is entitled to the reliefs sought in the application dated May 12, 2022. b.Who is liable to pay costs?

14. Section 4(2) of cap 301, Laws of Kenya provides as follows:-“A landlord who wishes to terminate a controlled tenancy or to alter to the detriment of the tenant any term or condition in or right or service enjoyed by the tenant under such a tenancy shall give notice in that behalf to the tenant in the prescribed form”.

15. Section 6(1) of the same act requires a receiving party who wishes to oppose a tenancy notice and who has notified the requesting party under section 4(5) of the act that he does not agree to comply with the tenancy notice may before the date upon which such notice is to take effect refer the matter to the tribunal whereupon such notice shall be of no effect until and subject to determination of the reference by the tribunal.

16. The landlord’s notice marked ‘FM1’ is in the prescribed form. It is for a period of at least two (2) months as it was to take effect on June 1, 2021. The grounds set out therein are consistent with section 7 (1) (b) which provides one of basis for termination of tenancy to be default in payment of rent for two months after such rent has become payable or the tenant has persistently delayed in paying rent which has become due and payable.

17. The tenant contends that there was no service of the said notice as he is the one who runs the business. According to the affidavit of service of Alex P Nzioki sworn on March 17, 2021 marked annexure ‘FM2,’ the notice was served upon Mrs Ann Yego on March 12, 2021 at 11:45 a.m. at the suit premises in Makupa/Tudor. The said recipient admitted to be a director of the tenant company.

18. Although the tenant indicated an intention to cross-examine the process server, no application to do so was made at the point of taking directions.

19. It is submitted by the tenant that the process server only alleged that he met one Ann Yego who acknowledged service but declined to append her signature which is a common statement from process servers meant to cover up for their lack of due diligence in service. It is also submitted that nothing was shown to dispel the doubt of non- service and that the process server would have fixed the notice at the gate or at a conspicuous place and then take a photograph to show that indeed he served the notice.

20. In the case of Secretary & Another v Lucia Ndinda Musyoka t/a Jocia Stores (2019) eKLR, the High court at paragraph 33 cited The treatise the Code of Civil Procedure Vol II page 1670 as follows:-“……….But if the fact of service is denied, it is desirable that the process server should be put in the witness box and opportunity of cross-examination given to those who deny service”.

21. In the case of Joseph Nathaniel Kipruto Arap Ngok & Another v EABS Bank Ltd (2014) eKLR it was held as follows:-“There is a prescription of service as stated in the process servers report and the burden lies on the incorrect. But an affidavit of the process server contest, it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server is put in the witness box and opportunity of cross-examination given to those who deny service”.

22. It is imperative to note that Mrs Anne Yego who is described in the process server’s affidavit as a director of the tenant did not swear any affidavit to contest the fact of service neither does David Yego state in his affidavit that she is unknown to him. I therefore have no reason to doubt the process server in view of all the foregoing facts.

23. Section 10 of cap 301 provides that a notice served under section 4 of the act takes effect from the date therein specified unless opposed through filing as expressed therein. There having been no objection or reference by the tenant, the notice took effect on June 1, 2021 and the tenancy herein stood terminated.

24. In the premises, I find and hold that the landlord has proved its case to the required standard.

25. Costs are in the tribunal’s discretion under section 12(1) (k) of cap 301, Laws of Kenya. I have no reasons to deny the landlord’s costs.

26. In conclusion, the final orders which commend to me are:-i.The landlord’s application dated May 12, 2022 is allowed in terms of prayers 1, 2, 3 and 4 thereof.ii.The costs of the case are assessed at Kshs 25,000/- against the tenant.

It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY DELIVERED THIS 1ST DAY OF NOVEMBER 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Birir for the tenantKenzi for the landlordBirir: I seek for stay for 45 days and a copy of proceedings and judgment and I undertake to pay costs.Kenzi: We are opposing the application for stay as tenant last paid rent in July 2022. He will continue defaulting to pay.Birir: It is true that my client has not paid rent. He paid upo to July 2022. He is willing to pay rent.Order: I have listened to both counsels on the application for proceedings and ruling as well as stay of execution.I am of the considered view that a formal application ought to be made demonstrating existence of an appeal and the jurisdiction of this Tribunal to grant stay under cap 301 in view of some decisions of superior courts stating otherwise.The tenant is also at liberty to file the application in the appellate court. Application for proceedings and ruling is allowed.HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALNovember 1, 2022