Amabale v Ngada [2022] KEBPRT 237 (KLR)

Amabale v Ngada (Tribunal Case 30 of 2021) [2022] KEBPRT 237 (KLR) (Civ) (15 July 2022) (Judgment)

Neutral citation: [2022] KEBPRT 237 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 30 of 2021

Gakuhi Chege, Vice Chair

July 15, 2022

Between

Jackson Moi Amabale

Applicant

and

Allan Mukuzi Ngada

Respondent

Judgment

1. The relationship between the two parties herein commenced with a tenancy agreement dated April 4, 2018 in which the landlord agreed to lease the suit property known as plot no 38, Mbale Town at a monthly rent of Kshs 4000/- for a period of one (1) year subject to being renewable effective May 1, 2018.

2. On July 5, 2019, the two parties entered into another agreement in respect of the suit premises for a period of a further one (1) year renewable effective July 5, 2019 at a monthly rent of Kshs 10,000/- payable on the 5th day of every month as it falls due.

3. On February 1, 2021, the landlord issued a notice upon the tenant on account of refusal to pay rent of Kshs 21,000/-. The landlord’s second ground is that he intended to undertake major renovation of the premises. He therefore seeks for an order that the tenant pays all the rent arrears and vacate the premises for renovation.

4. The tenant filed the instant reference in opposition to the tenancy notice. On October 29, 2021, this tribunal directed both parties to file and exchange witnesses statements and all the documents they intended to rely upon during the hearing.

5. On June 2, 2022, both parties agreed by consent to rely on filed documents and witnesses statements. The tenant filed his list of witnesses and list of documents by himself and one Wycliffe M Ngoda as witness. On the other hand, the landlord filed his list of witnesses and documents dated May 30, 2022. The witnesses statements are by the landlord and Karen S Simasi.

6. According to the landlord, he was on February 18, 2018 appointed by the family of late mzee Joram Ngoda Chuma who was his father to handle all matters concerning plot no 88, Mbale town as the family representative until succession process was complete.

7. The tenant was brought into the premises by the landlord on the understanding that the latter was acting as the family representative and agreed to lease the property. He gave the tenant a copy of the authority signed by the family members. They entered into an agreement.

8. In a family meeting held three (3) years later, It was resolved to undertake renovation and modification of the building. The tenant was accordingly informed of the decision and was required to vacate the premises for sometime and would be given priority after the process was over. A notice to that effect was served.

9. The landlord denies that he completed his studies. He also denies that the rental income is used to educate children of Karen Misoga.

10. The landlord states that he was not involved or informed of any changes in the tenancy neither was the family of the late Joram Ngoda involved in the changes claimed by the tenant.

11. Karen S Simasi in a signed statement dated November 6, 2021 denies that her children benefit from the rent collected from the suit property. Minutes of the family member’s meeting held on February 18, 2018 were produced together with authority given to the landlord to manage the suit property.

12. On the other hand, the tenant states that he entered into a tenancy agreement with the landlord in respect of the suit property after he “passed off” himself as the owner of the suit premises. The tenant states that the landlord did not disclose that it was a family property belonging to his late father.

13. When the landlord began harassing him to vacate for no reason, the tenant learnt that the property belonged to Jorum Ngoda Chuma, the late father of the landlord and that succession was yet to be done. As such the tenant contends that the tenant, did not have legal capacity to mount any case against him concerning the estate of his late father without first obtaining letters of administration.

14. According to the tenant the agreement with the landlord lapsed and he entered into a new one with his brother. He claims without tendering evidence that he had paid rent due and was not in arrears. He therefore opposes the notice to terminate tenancy.

15. The tenant’s witness was one Wycliffe M Ngoda who is the landlord’s elder brother. He states that the suit property belongs to their late father one Jorum Ngoda Chuma who died a long time ago. No succession proceedings of the estate had been instituted and as such the landlord (his brother) had no capacity to mount any case against the tenant concerning the estate of their late father without first obtaining letters of administration.

16. He admits that the family permitted his brother (landlord) to enter into a gentleman’s agreement with the tenant to get funding to support his bible college studies. The studies ended and the family ended the arrangement and permitted the witness to make a new agreement with the tenant which happened on 1/11/2020. A letter was written to the landlord on 29/1/2021 and was copied to the tenant among others.

17. In the circumstances, it is the said witness contention that his brother has no right to deal with the tenant as proposed in his notice to terminate dated February 1, 2021.

18. I am now required to determine the following issues:-a.Whether there exists a landlord/tenant relationship between the parties herein.b.Whether the tenancy notice dated 1/2/2021 served upon the tenant is valid.c.Whether the landlord is entitled to vacant possession of the suit property.d.Who is liable to pay costs of the reference?.

19. It is common ground that the tenant went into possession of the suit property through the initial tenancy agreement entered into with the landlord on April 4, 2018. Upon expiry of the initial lease, the parties entered into a second lease agreement on July 5, 2019 for a further period of one (1) year. The said agreement was therefore due to expire on July 4, 2020. He did not however vacate from the suit property and continued in possession. It is not very clear on what terms he remained in possession as he claims to have entered into a new agreement on as he claims to have entered into a new agreement on November 1, 2020 with Wycliff M Ngoda as the new landlord.

20. By then, he had held over for a period of five (5) months thereby creating a periodic tenancy under the Land Act, 2012 section 60(1) of the Land Act which provides as follows:-“(1)(1) If a lessee remains in possession of land without the consent of the lessor after the lease has been terminated or the term of the lease has expired, all the obligations of the lessee under the lease continue in force until such time as the lessee ceases to be in possession of the land”.

21. Section 60(2) thereof provides that a periodic lease is created if the lessor continues to accept rent from the tenant who remains in possession for two months after the termination of lease.

22. As at February 1, 2021, when the tenancy notice was issued, the tenant was in arrears of Kshs 21,000/- only. The monthly rent according to the second tenancy agreement was Kshs 10,000/-. This means that the tenant had paid rent for the preceding months from June 2020 to November 2020 but failed to pay rent for the months of December 2020 and January 2021. This means that by the time the elder brother and the tenant purported to enter into the agreement dated November 1, 2020 there was already a periodic tenancy of month to month between the tenant and the landlord herein. No termination notice was issued in that regard to end the relationship.

23. The tenant and Wycliffe M Ngoda argue that the landlord had no capacity to enter into the tenancy agreements entered into with him or to issue the notice to terminate tenancy on account of lack of letters of administration. It is my considered view that the landlord having acted on the authority of family members of the late Joram Ngoda Chuma was competent to act as a landlord in respect of the suit premises. No such authority has either been exhibited by Wycliffe M Ngoda.

24. Section 2(1) of cap 301 defines a landlord in relation to a tenancy to mean the person for the time being entitled as between himself and the tenant to the rents and profits of the premises payable under the terms of the tenancy.

25. In this case, the tenant’s tenancy was created between him and the landlord, the tenant cannot turn around and disown the landlord as a person without capacity to enter into the tenancy agreement pursuant to which he came into possession of the suit premises.

26. In this regard, I wish to rely on section 121 of the Evidence Act, cap 80, Laws of Kenya which provides as follows:-“No tenant of immovable property or person claiming through such tenant, shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy a title to such immovable property and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a right to such possession at the time when the license was given” (emphasis mine).

27. The tenant herein is by dint of the foregoing section estopped from denying that the landlord had capacity to lease the suit property to him.

28. In regard to the issue of letters of administration, I will cite the case of Ramadhan Mohamed Ali vs Hashim Salim Ghanim (2015) eKLR at paragraph 11 where it was held as follows:-“11. There is no dispute that the respondent was in relation to the payment of rent, the appellant’s landlord and from the evidence before the tribunal, he is the person who is entitled to rents and profits from the suit property as part of the deceased’s estate. As such, it was not compulsory for him to apply for and take out a Grant of letters of administration under section 45 of the Law of Succession Act before giving the notice of termination of tenancy. The tribunal’s finding at page 3 of its judgment is correct that:-“ownership is not an issue that is relevant under the landlord and Tenant (shops, Hotels and Catering Establishments) Act (cap 301, Laws of Kenya)”.

29. In the premises, I find and hold that there exists a landlord and tenant relationship between the two parties herein and any subsequent agreement entered into with Wycliffe M Ngoda is null and void. In fact there is no evidence that the appointment of the landlord as the person responsible to deal with the suit property on behalf of the family of Joram Ngoda Chuma was ever revoked. There is neither any evidence that Wycliffe M Ngoda was ever appointed to replace the landlord in respect thereof.

30. The tenant has not denied that he had not paid rent to the landlord when he was served with notice to terminate tenancy. He did not produce any evidence to show that he had paid rent to Wycliffe M Ngoda who in any event had no capacity to collect rent from the suit property. The tenant has not disputed the intended renovations which were agreed upon in the minutes of family meeting held on February 18, 2018 relied on by the landlord.

31. It follows that there being no evidence to controvert the landlord’s case, I am satisfied that the tenancy notice has been proved on a balance of probabilities.

32. In regard to costs, the same are always in the court’s discretion and follow the event unless for good reasons otherwise recorded. I have no reasons to deny the landlord costs.

33. In conclusion, the following final orders commend to me:-i.That there exists a landlord/tenant relationship between the parties herein which is controlled and the lease agreement dated November 1, 2020 between Wycliffe M Ngoda and the tenant herein is null and void for all purposes.ii.The tenancy notice dated February 1, 2021 issued by the landlord to the tenant is hereby approved.iii.The tenant shall vacate the suit property being plot no 38, Mbale Town on or before July 31, 2022 and in default, the landlord shall be at liberty to evict him through a licensed auctioneer who shall be provided with security by the OCS Mbale Police Station.iv.The tenant shall pay all the accrued rent arrears by July 31, 2022 and in default the landlord shall be at liberty to use legal means to recover the same.v.The tenant shall pay costs of Kshs 25,000/- to the landlord.It is so ordered.

RULING DATED, SIGNED AND DELIVERED THIS 15TH DAY OF JULY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALJudgment delivered in the absence of the parties.