Alice Wangui Kiboi v Ejidiah Wamuhu Wairire [2021] KEBPRT 441 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 75  OF 2020  (NYERI)

ALICE WANGUI KIBOI..................................................................TENANT

VERSUS

EJIDIAH WAMUHU WAIRIRE.................................................LANDLORD

JUDGMENT

By a notice to terminate tenancy dated 11th November 2020, the landlord sought to end the Tenant’s tenancy over premises standing on Title No. AGUTHI/GATITU/4344 where she operates a bar business known as RAFIKI PUB “with effect from 1st February, 2021.

The grounds for termination are failure to pay rent or remit the same promptly and that the Tenant was in rent arrears of 3 months (September-November 2020 @ Kshs.8000/- all totaling to Kshs.24,000/-.

The second ground is breach of tenancy agreement and finally that the Landlord intends to take possession and make use of the premises for a period of not less than one year.

The Tenant filed a reference on 7th May, 2020.  The Landlord entered appearance on 15th March, 2021 through the firm of WANGARI MWANGI & CO. ADVOCATES.

The matter came up for hearing on 18th March 2021 with the  Landlord testifying as PW1.

The gist of the Landlord’s case is that the subject tenancy begun on 26th April, 2014 vide a written agreement of even date.

It was the Landlord’s case that the Tenant was paying rent without submitting deposit slips to her.

The original user of the premises was a “wine and spirits” shop.  The Tenant however changed the business into a bar without the Landlord’s permission.

It was the Landlord’s case that the Tenant failed to pay rent from October, 2020 to March 2021.

The landlord however stated that the tenant produced banking slips on 15th March, 2021 when she appeared in court and was by then only in arrears of one (1) month.

The Landlord confirmed that she had objected to the Tenant being issued with a liquor licence by the county Government for the bar business.

According to the Landlord, the bar business is a nuisance to her and other tenants.

Her case parting shot was that she intended to use the business premises for a grocery.

In cross-examination, the landlord had rent arrears for the month of March, 2021 only.

The landlord produced the tenancy agreement as P. Exhibit 1 and letter of objection to issuance of liquor licence as P.Exhibit 2.

The landlord confirmed that the bar business had been running for over 4 years prior to the notice to terminate tenancy.

The Tenant testified as DW1 who stated that she had operated the bar since 2015 and that the Landlord had not objected to the change of business.

The Tenant stated that her business was not a nuisance as the toilets were inside the premises and she uses the front door for the patrons and herself to access the premises.

Pursuant to the objection by the Landlord against renewal of the liquor licence, the Tenant was informed that she could not renew it under the same premises.

She stated that she had a loan to pay and solely relies on the said business.

She requested for (1) year to vacate.

In cross-examination, the Tenant confirmed that the toilet in the premises was constructed by the Landlord while she constructed a urinal.

The only issue for determination is whether the notice to terminate ought to be upheld or dismissed.

I have listened to both parties and the following issues are not in dispute:-

(1) The Tenant took possession of the premises on 26th  April, 2014.

(2) In the year 2015, the Tenant changed the business from a wines and spirits to a bar and the Landlord took no action.

(3) The Tenant has been faithfully paying the reserved rent save for the period when bar businesses had been closed by the Government owing to Covid-19 pandemic.

(4) The Landlord’s notice is based on the grounds that the Tenant is in arrears for the months of September, 2020.  However, the Tenant proved rent payment for that period.

(5) Although the Landlord stated that she intended to use the premises for a period of not less than one (1) year, she did not demonstrate through empirical evidence how she intended to use it.

(6) The Tenant sought for one (1) year to move out of the premises.

(7) The Tenant has been denied extension of the  liquor licence on account of the Landlord’s objection.

In the premises, it is clear from the foregoing that although the Landlord has not proved the grounds for termination of the tenancy, the relationship between her and the Tenant is no longer cordial and is not good for the Tenant’s business.

This is moreso in view of the fact that she has been denied extension of the liquor licence.

In order to strike a balance between the interests of both parties, I order that the tenant looks for alternative business premises within the next six (6) months from the date hereof.

If the Tenant fails to comply with the foregoing order, she will be evicted therefrom without any further notice by the Landlord.

There shall be no orders as to costs.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

JUDGMENT READ AND DELIVERED THIS 16TH DAY OF APRIL, 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of Miss Wangari for the Landlord

No appearance for the Tenant