Ali v Nyawa [2024] KEBPRT 87 (KLR)

Ali v Nyawa (Tribunal Case E257 of 2023) [2024] KEBPRT 87 (KLR) (19 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 87 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E257 of 2023

N Wahome, Member

January 19, 2024

Between

Abdurahman Muhdar Shee Ali

Applicant

and

Johnson Kalume Nyawa

Respondent

Ruling

1. The Landlord herein Abdurahman Muhdar Shee Ali filed a reference dated 18th October 2023 which raised the following grievances,i.That the Tenant has not paid rent for more than ten (10) months of which rent has become arrears and has accumulated to the sum of Kshs.50,000/- at the rate of Kshs.5,000/- per month.ii.That the rent arrears continue to increase every month hence the Tenant should be compelled to vacate the premises to prevent further accumulation of money in rent arrears.

2. The Landlord therefore sought for the following reliefs in the said reference:-a.That the Honourable Tribunal court be pleased to direct/or order the Tenant/Respondent to settle all the outstanding rent arrears in the sum of Kshs.50,000/- being the rent arrears accrued for more than 10 months.b.That the Tenant be compelled to give up vacant possession to allow the Landlord/Applicant take over possession and carry out his own business.c.That the OCS Lamu Police station to ensure compliance of this order.d.That the costs of this reference be borne by the Tenant/Respondent.

3. The Reference was accompanied by a Notice of Motion dated 18/10/2023 brought under certificate of urgency. The same reiterated the orders sought in the reference. It also sought for costs of the application.

4. On service with these proceedings, the respondent through the firm of Mutethia & co. Advocates filed the Notice of Preliminary objection dated the 30/11/2023. The preliminary objection was on the grounds that:-a.That the Applicant has sued the wrong party as the remedies he is seeking cannot lie against the Respondent.b.That the Applicant’s claim against the Respondent is to that extent incompetent, bad in law, fatally defective and otherwise an abuse of the court.

5. In response to the preliminary objection the landlord filed a supplementary affidavit sworn on the 5/12/2023. In it he demonstrated that:i.That his lease Agreement for HS NO. 003A2 was with the Respondent Johnson Nyawa “Exhibit B”.ii.That rent was being paid to him by Johnson Kalume the respondent ”Exhibit -A”.iii.Presented Mpesa statements to show payment to him by the respondent.

6. The Landlord averred that the firm of Orina and Manari Advocates were a stranger to him and that the respondent claimed to be a partner in the firm. But that he entered into the lease agreement in his personal capacity.

7. Both parties herein have filed their respective submissions pursuant to the directions given on the 1/12/2023. On analysis of all the materials presented to court, I am of the opinion that the issues for determination in this matter are the following:-a.Whether the respondent’s notice of preliminary objection is meritedb.Whether the landlord’s prayer for vacant possession is qualified.c.Whether the landlord has proved his case for rent arrears and how muchd.Who should bear the costs of this suit

8. On the first issue of whether the Respondents notice of preliminary objection is merited, I would wish to address the question of the structure of a valid preliminary objection.In the case of Mukisa Biscuits Manufacturing Company Ltd – Vs- Westend Districutors Ltd (1969) E.A 696 the court stated that:-“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit”.

9. In this case, there are no pleadings by the respondent at all leave alone on the question of the status of the respondent in this matter. There are also no pleadings on record which by implication or otherwise raises the issue of the status of the parties.

10. Indeed the landlord has been able to effectively demonstrate that he had a tenancy agreement with the respondent and that he had been receiving rent in the names of the respondent. The relationship established by the material conduct of the parties is that the Applicant is the landlord of the respondent and that the respondent is the Tenant of the Applicant in relationship to the demised premises otherwise known as HS No. 003A2.

11. It follows then that the preliminary objection dated 30th November 2023 is without any merit and the same is respectively declined.

12. On whether the landlord’s prayer for vacant possession is qualified I would wish to refer to Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments)Act Cap. 301 hereinafter referred to as “the Act” which provides that:-“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 services enjoyed by the Tenant under such a tenancy shall give notice in that behalf to the tenant in the prescribed form”.

13. Regulation 4(1) of the Regulations to the Act provide that:-“A notice under Section 4(2) of the Act by the landlord shall be in form A in the schedule to these regulations”.From the above, it is plain and clear that the landlord has not in anyway issued any notice of whatever infrastructure to the respondent with a view to terminating their relationship herein.

14. The above provisions are mandatory and any notice or in this case where there is no notice at all, such relief as am invited to give herein is a legal impossibility especially when looked against the plain reading of the law and the Locus Classicus case of Frendrick Mutua Mulinge T/A Kitui Uniform – vs- Kitui Teachers Housing Co-operative Society Ltd (2017) eKLR.

15. I therefore determine that the landlord is not qualified to recover vacant possession of the demised premises in view of the above analysis and findings and that prayer is specifically declined.

16. On the 3rd issue of whether the landlord has proved his case for rent arrears and how much he is entitled to, I have perused all the pleadings on record and find that the respondent has not in anyway whatsoever controverted the Landlord’s evidence on oath that as at October 2023, he owed the landlord Kshs.50,000/-. That being the rent for Ten (10) months at Kshs.5,000/- per month.

17. If the rents for November, December 2023 and January 2024 are incorporated at Kshs.15,000/- for the three (3) months, then the total owing to the landlord sums up to Kshs.65,000/-. These are rents that have lawfully accrued to the landlord and without any challenge to the same, it is duly determined that the Applicant is entitled to the same.

18. The 4th and last issued is on who should bear the costs of this suit. Having looked at the materials placed before me in their totality, I do not have any reason whatsoever to depart from the wisdom of Section 27 of the Civil Procedure Act. I would therefore award the costs herein to the Landlord/applicant.

19. In the final analysis, the orders that commend to me are the following:-1. That the Notice of Preliminary Objection is dismissed as lacking in any merit.2. That the prayer for vacant possession is declined as the Landlord/Applicant has not complied with Cap, 301. 3.The Landlord/Applicant has been granted Kshs.65,000/- being rent in arrears and has the leave of the court to levy distress in recovery of the same.4. That the reference herein and dated 18/10/2023 having been fully compromised by the Ruling herein is also determined in the same terms.5. The Respondent shall pay to the landlord costs assessed at Kshs.20,000/-.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 19TH DAY OF JANUARY 2024. HON. NDEGWA WAHOME, MBS - MEMBERBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of the Landlord/applicant and in the absence of the Tenant/Respondent.HON. NDEGWA WAHOME, MBS - MEMBERBUSINESS PREMISES RENT TRIBUNAL19/1/2024