Alex Njuguna Gitau v Benter Atieno Mwalo [2021] KEBPRT 220 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO.  E356   OF 2021  (NAIROBI)

ALEX NJUGUNA GITAU.........................................................TENANT

VERSUS

BENTER ATIENO MWALO................................................LANDLORD

JUDGMENT

1.  By a tenancy notice dated 5th July 2021, the landlady is  seeking to terminate the Tenant’s shop G.3 on grounds of non-payment of rent and intention to carry out renovation works with effect from 1st October 2021.

2.  The Tenant in opposition to the said tenancy notice instituted this reference dated 16th July 2021 which was ordered to proceed by way of viva voce evidence.

3.  Both parties filed witness’ statements and documents intended to be relied upon and on 9th September 2021, the matter proceeded to hearing with the Tenant beginning.

4.  The Tenant relied on his witness statement as well as documents filed in the Tribunal.  It was his evidence that he met the Landlady in 2014 when he desired to set up a pharmacy at shop no. G.3 on the ground floor of Mwabe apartments situate on L.R. No. 209/204 along Okoth Aura Road, off  Muranga Road.

5.  He was issued with a lease for the premises which expired on 21st September 2019 and was not renewed.  He however remained in possession of the premises and continued to pay the agreed rent of Kshs.25,000/- which was later reviewed to Kshs.30,000/- by the  Landlady.  He relied on a bundle of receipts to prove rent payments.

6.  On 5th July 2021, he was issued with a notice to vacate the premises on grounds of non- payment of rent and renovation.  He objected to the notice because he had no rent arrears.

7.  He further states that the renovations do not touch on the shop that his business occupies but on the roof.  He referred to photographs of the works being undertaken marked ANG”.  He further stated that he has been harassed by the landlady for no apparent reason through disconnection of water supply despite always paying for his bills.  On several occasions, the caretaker failed to issue him with water bills.

8.  In the year 2019, the Landlady’s daughter one Janet Mwalo took over the management of Mwabe apartments as the sole agent.  As the Tenant was straggling financially, he reached out to her and agreed to be paying rent on or before the 20th day of every month which he has been diligently doing.

9.  The Tenant relies on screenshot messages and bundle of receipts and bank statements to prove payment of rent as and when the same fell due and payable.

10. It is the Tenant’s case that the Landlady instructed Co-operative Bank, Gikomba Branch not to allow him to pay rent into her account on the basis that she did not have any tenant in the premises which was untrue.  A copy of the cheque which he intended to deposit is on page 34 of the bundle of documents filed by him.

11. The Tenant testified that he informed the Landlady of his back problem and was allowed to put an Orthopaedic mattress at the back of the shop for his own use in the consultation room located at the back of the pharmacy.  He therefore denies that he resides at the shop.

12. Since he operates a pharmacy, the tenant testified that the business cannot be relocated without the consent of the pharmacy and poisons board.  He relied on a screenshot of the Board’s portal filed in court.  He states  that he is not allowed to change location having already applied for and renewed the 2021 licence at his current location.

13. The Tenant states that he is opposed to the notice having established a business goodwill of over seven years at the current business location and that the business was sole source of livelihood.  He states that he and his family will be severely affected as he was the sole provider.

14. The Tenant prays for an order to be allowed to deposit rent with the Tribunal and compel the Landlady to cease harassment.  He further prays for dismissal of the notice to terminate tenancy.

15. In cross-examination, the Tenant stated that he had paid rent for the month of December 2019 through a cheque which he had not attached to his documents.  He also testified that he paid rent for April 2021 despite there having been a dispute over water connection.  The April 2021 was paid on 14th June 2021.

16. He admitted having delayed in rent payment for the month of June 2021 which was made on 6th July 2021.

17. He confirmed that there were only 3 Tenants remaining in the premises.  He stated that repairs could be carried at when he was still in possession.

18. Upon being cross- examined by the court, the Tenant stated that he did not think that the Landlady has a genuine intention to renovate the premises.  He confirmed that two other shops were vacant and that he was not aware of any other case in the Tribunal between the Landlady and the other two remaining Tenants.

19. The Landlady also testified and heavily relied on her witness statement already filed herein.  She also produced the documents already filed.

20. According to the Landlady, the Tenant was in arrears of Kshs.90,000/- being December 2019 and April to August 2021.  Even when the Tenant made rent payment, the same was persistently delayed.

21. The landlady testified that although the premises was leased for business purposes, the Tenant had breached the tenancy by using the premises for residential purposes.

22. The Landlady testified that she was carrying out renovations of the whole building which could not be done without obtaining possession of the premises.  She relies on the authority given by the Nairobi Metropolitan services on 29th June 2021 to prove the same.

23. The Landlady stated that the annual permit issued to the Tenant to run his business in the premises should not be used to curtail her right to property enshrined under Article 40 of the Constitution of Kenya 2010.

24. According to the Landlady the notice served on 5th July 2021 was sufficient and in accordance with section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering) Establishments Act and the same shall crystalize on 1st October 2021.  She therefore seeks for dismissal of the reference.

25. In cross-examination, the Landlady agreed that the authority issued by the Nairobi Metropolitan Services states that the same does not authorize interference with any “tenancy agreement between or among parties to the premises”.

26. The Landlady further stated that she has not received rent and does not want to receive it in any form and that she would not complain about non-payment later.

27. She also stated that she started experiencing rent default by the Tenant from the year 2019.

28. In re-examination, the Landlady stated that she was undertaking renovations to the existing building and wanted all the Tenants out of the premises to facilitate the same.  The other two remaining tenants had not objected to the notices to terminate their tenancies.

29. She stated that she intends to put a slab on the roof, tiles on the floor, paint the building and repair the toilets, bathrooms and drainage system thereof.  This according to the Landlady  cannot be done in the presence of the Tenants.

30. Having analysed the evidence and the documents presented before the Tribunal, the following issues emerge for determination:-

(a) Whether the termination notice should be upheld or dismissed.

(b) Who is liable to pay costs of the reference?.

31. Under Section 4(2) of Cap 301, a Landlord who wishes to terminate a controlled tenancy or 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.

32. Under Section 7(1) (f) of Cap. 301, one of the grounds for termination of tenancy is:-

“That on the termination of the tenancy, the landlord intends to demolish or reconstruct the premises comprised in the tenancy or a substantial part thereof or to carry out substantial work of construction on such premises or part thereof and that he could not reasonably do so without obtaining possession of such premises”.

33. At the time of instituting the reference, the Tenant filed a motion dated 28th July 2021 and by his sworn affidavit in support thereof at paragraph 8 deposes as follows:-

“8. The Landlady has failed, refused and neglected to put in place, the necessary safeguards to guarantee our safety, the safety of the customers and passers by from debris falling from the roof”.

34. During the hearing, it became clear that the construction work had already started and that the upper floors of the building had already been vacated.

35. Only three (3) Tenants operating businesses on the ground floor were remaining in the premises.  Two of the other Tenants were not opposing the termination notice.

36. The Landlady appear to have abandoned the ground for non-payment of rent and concentrated her evidence on the need to obtain vacant possession to enable the renovation which had already begun.

37. The nature of the renovations which includes replacement of the roof with a slab are major.  The floors are supposed to be  tiled and the drainage and sanitation facilities are meant to be redone.  These are no doubt substantial works of construction by all standards.

38. The Tenant did not justify his doubts that the Landlady had a genuine intention to undertake construction on the building which had already begun.  He in his own affidavit cited above had expressed safety concerns about the construction.

39. I have no doubt in my mind that the reasons given for requiring possession are genuine and no good reasons have been advanced by the Tenant why I should dismiss the notice to terminate tenancy served upon him.

40. In the premises, and in line with Section 12 (1)(e) of Cap. 301 Laws of Kenya which gives this Tribunal power to make orders on possession, I make the following orders:-

(a) The Tenant’s reference dated 16th July 2021 is hereby dismissed with costs.

(b) The Tenant shall give vacant possession of the demised premises situated on L.R. NO. 209/204, shop No. G.3, Okoth Aura road, off Muranga road known as Mwabe apartments, Nairobi City within the next fourteen (14) days and in any event before 15th October 2021.

(c) In default of (b) above, the Tenant shall be removed from the premises by a licenced auctioneer who shall be provided with security by the OCS within whose jurisdiction the premises are situate.

(d) The Tenant shall pay the Landlady’s costs assessed at Kshs.60,000/- for the reference.

It is so ordered.

DATED, SIGNED & DELIVERED THIS 30TH DAY OF SEPTEMBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUISNESS PREMISES RENT TRIBUNAL

In the presence of

Kokebe for the Landlady/Respondent

Mwisigua holding brief for Miss Sebastian for Tenant