Asha Grover W/O Satendra Grover t/a Electro Winders Services v Yuhua Trading Company Limited [2020] KEELC 2822 (KLR) | Landlord And Tenant Disputes | Esheria

Asha Grover W/O Satendra Grover t/a Electro Winders Services v Yuhua Trading Company Limited [2020] KEELC 2822 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONEMENT AND LAND COURT OF KENYA

AT NAKURU

ELC NO 25 OF 2019

ASHA GROVER W/O SATENDRA GROVER T/A ELECTRO

WINDERS SERVICES ...........................................APPELLANT

VERSUS

YUHUA TRADING COMPANY LIMITED......RESPONDENT

J U D G M E N T

(Being an Appeal from the Judgment /Decree of Hon. Mbichi Mboroki, Chairman delivered on 21st September 2018 in Nakuru BPRT No.37Of 2017 ).

1. This appeal arises from the judgment/Decree of Hon Mbichi Mboroki, Chairman of the Business Premises Rent Tribunal (BPRT) delivered on 21st September 2018 in Nakuru BPRT No.37 of 2017. The Hon. Chairman after hearing both the Tenant and the landlord on the reference filed by the Tenant made a decision dismissing the reference by the Tenant dated 25th July 2017. He upheld the Landlord’s Notice dated 19th July 2017 to terminated  the tenancy  and ordered the Tenant  to vacate the  premises  on or before 31st  December, 2018 and in  default  an eviction order to issue without any further  reference to the Tribunal.

2. The Tenant/Appellant was aggrieved by the decision  and  has appealed to this court against  the judgment  of the Hon. Mbichi Mboroki, Chairman of the BPRT and has set out the following  grounds of appeal  in the memorandum  dated 22nd  October 2018:-

1. That the learned Chairman erred in granting an order of termination of tenancy on the grounds given by the Landlord whereas there was insufficient evidence to support the grounds.

2.  That given  the multiplicity  of notices  issued over the years and   the multiplicity of reasons for termination and given that the law  is  for the protection of the tenant,  the chairman  erred in law  and in fact in not finding  that the current  notice was  tainted with malice  and a desire  to victimize  the tenant at whatever  cost.

3.  That the learned  Chairman  erred in failing  to consider the nature, validity  and veracity  of the evidence adduced for the  Respondent in granting  the orders of termination.

4.  That the learned Chairman erred in granting an inordinately short period for the effective date of termination considering the Appellant’s long period in the suit premises.

5. That the chairman   decided the reference against the weight of evidence on record.

6.  That  the chairman  erred in law and in fact  in directing  the appellant to vacate and deliver  vacant  possession of the suit premises  on or before  31st December 2018 and in default thereof eviction order do issue without  reference  to the tribunal .

3. It is  evident  from the grounds of appeal  that the appellant is primarily faulting  the chairman’s evaluation of the evidence and his  findings thereof  contending  that the chairman  fell in error  in his evaluation and appreciation of the evidence. Simply put the appellant’s contention is that the chairman’s findings and the decision thereof was against the weight of the evidence. The  appellant’s  position was that  the decision of the chairman  was unjustified having  regard to the evidence placed on record  and  on that account the Appellant  wants this court sitting  as an appellate  court to interferer  with  the Chairman’s  findings and decision in the manner  proposed in the memorandum of appeal by setting  aside  the judgment and  in place thereof  to make an order allowing the appellant’s reference before  the Tribunal.

4. This being  a first  appeal  the court  is obliged and indeed under a duty to re-evaluate  the evidence adduced before the Tribunal  to satisfy itself whether  or not  the Tribunal  reached a just decision   having  regard to the evidence. The rule of a court on a first appeal was  well enunciated in the Court of appeal case of Selle & Another -vs-  Associated  Motor Boat  Co Ltd & others (1968) EA 123 where the court  stated the guiding  principle  as follows:-

“—this court is not bound necessarily  to accept  the findings of  facts by the Court  below. An  appeal  to this  court  is by way  of retrial  and the principles  upon which  this court  acts upon which this court  acts  in such an appeal  are well settled . Briefly  put they are this court must reconsider the evidence, evaluate  itself  and draw its  own conclusions  though  it should  always  bear in mind  that it has neither seen  nor heard the witnesses and should make due allowance in  this respect .

5. The appellant’s  counsel  in his  submissions has  cited to the  court  the case  of Makube –vs-  Nyamuro  (1983) KLR 403 where the court  of Appeal  interalia  held :-

“ A court  on appeal  will not  normally interfere with the findings of fact by a trial  court unless  it is based on no evidence, or on a misapprehension  of the evidence, or the judge is shown demonstrably to have acted in wrong  principles in reaching a conclusion”.

6. The above referenced cases do succinctly capture the role of an appellate court in the hearing and determination of an appeal. The court has an obligation to re-evaluate and re analyse the evidence and can reach its own conclusion respecting the evidence. The court however should exercise caution before interfering with the lower   court’s findings of fact and should only do so if it is  evident  that  the trial court’s findings were not based on any evidence and/or  were based  on a misapprehension of the evidence  and /or that the  Court  is shown  to have acted on wrong  principles in reaching  the conclusion it did.

7. It is thus essential to re-evaluate the evidence the parties presented before the Tribunal in order to determine whether the Hon. Chairman’s decision was justified. The basic facts in regard to the reference before the Tribunal were briefly as follows:-

8. The Landlord the present respondent served a Notice  to Terminate  the tenancy  of the appellant vide  the Landlord’s  Notice  to Terminate Tenancy  dated 19th July  2017. The Notice was issued pursuant  to the provisions of section  4 (2)  of the  Landlord  and Tenant  (shops Hotels and catering  Establishments) Act, Cap 301 Laws  of Kenya. The ground for the Notice to Terminate was: -

“That on termination of the tenancy the landlord himself intends to occupy the premises comprised in the tenancy for the purposes of a business carried on by him therein. The landlord intends to expand his business  and as at the moment  his business  goods are kept outside hence being  exposed  to the bad weather  as rain  and hot  sun  was causing  depletion  of the stock.

9. The Notice was to take effect from 1st November 2017 and the Tenant was required within one month to notify the landlord whether or not he would comply with the notice. The Tenant /Appellant did not accept the Notice and on 28th July 2017 filed a reference at the Tribunal being Nakuru BPRT No.37 of 2017 signifying his opposition to the Notice of Termination of Tenancy by the Respondent. The reference was head by the Tribunal and briefly the parties adduced evidence as follows:-

10. The Landlord Respondent testified that he was the owner of LR No.Nakuru Municipality Block 4/3 and that he served the appellant with the Notice to terminate tenancy dated 19th July 2017. He explained that he required to occupy the premises occupied  by the appellant   as he needed  to expand the business  he was carrying of motor cycle sales. He stated he had had no problem with the appellant for the period of 20 years he had occupied the premises as a tenant. He stated he only had 2 tenants in his premises.

11. The Respondent admitted he had previously issued the appellant notices in 2014, 2015 and 2016 which were withdrawn. He stated the other tenant in the premises was Anzu Agro Chemists and that there was no other tenant. He denied he intended and/or had intended to increase rent and affirmed there was no dispute relating to rent.

12. The appellant who testified through her son confirmed she was a tenant in the respondent’s premises and acknowledged having received the Notice to terminate the Tenancy. The Appellant was of the view the Notice had not been given in good faith. The Appellant stated the Respondent had served previous notices which however had been withdrawn. The Appellant asserted the Respondent had a lot of space within the premises which he could utilize in expansion of his business.

13. In cross examination the Appellant stated  her shop was at the rear of the Respondent’s shop. The Appellant  further stated  they  had  occupied the premises for over 20 years while the other  tenant   in the premises  had only  been  in the  premises  for three (3)  years. The appellant reiterated the respondent had no genuine reason to seek  termination  of the appellant’s tenancy. The Tribunal inspected  the premises on 15th March 2018 after which  the parties filed  their closing  submissions  before  the Tribunal rendered its judgment.

14. The chairman after evaluating the evidence and following  inspection  of the premises made the  following  findings:-

1.  That there is no evidence on record  to  show  that the  Landlord has malice or a grudge against  the Tenant. The Tenant’s witness merely asserted that the Landlord was not genuine. There is no material before  the Tribunal  to show  that  from  the time  the Landlord acquired the property, that  is, 9th May 2008 that it has treated  the Tenant  maliciously. The Landlord has not even increased rent from 9th May 2008.

2. The Tribunal upon inspection of the suit premises confirmed that the Landlord was using the adjacent room to the Tennant’s premises as a store.

3. The Landlord has satisfied the Tribunal that it has a genuine  intention to use the suit premises as part of the expansion of its business.

4. That  Tenant  has been aware of the Landlord’s  intention from  the year  2014. The Tribunal  is satisfied on the evidence on record that the Landlord has proved the ground of termination  of tenancy as per the notice dated 19th July, 2017 on a balance of probabilities.

15. The Court having  reviewed the evidence presented before  the Tribunal is  satisfied that the Respondent’s  Notice  to terminate  the appellant’s  Tenancy was a valid  notice and that  it was based upon one of the grounds provided under section 7 (1)  of the  Landlord and Tenant  (shops, Hotels and catering  Establishments) Act Cap 301 Laws  of Kenya  pursuant  to which  a  landlord  could  lawfully terminate a tenancy.

16. The primary objection  that the Appellant  had against  the notice  to terminate her tenancy  was  that  the Respondent  was not  acting in good faith  and that the intention to terminate  the tenancy  was not  genuine. To back up her objection the appellant contended that the landlord had a lot  of space within  the premises  which they could  use  to expand their business . The Tribunal visited the premises, and although there was no record of the proceedings during the site  visit, the chairman  in the judgment  dispelled  the appellant’s contention  of availability of ample space.

The Chairman  in the judgment  interalia  stated as follows:-

“ The Tribunal inspected the premises, on 15th March, 2018 and  confirmed  that the shop the Tenant  stated was vacant was being used  by the Landlord for storage purposes and it was full of the Landlords properties”.

17. Clearly there was no credible evidence adduced by the Appellant to demonstrate that  the Respondent was acting in bad faith and/or maliciously. Indeed the evidence appeared to show that the Respondent and the Appellant had a good landlord and tenant relationship. The Respondent acquired the premises in 2008 and upto to the time the reference was being heard, had not revised the appellant’s rent. The Respondent and appellant had no rent dispute. Although evidence was led that the Respondent had  served  notices on the appellant in 2014 and 2015 which  were  subsequently  withdrawn, these notices were not  exhibited  and there  is no evidence  to suggest  the same were  served and/or given maliciously. The evidence presented established there was a  need by the  Respondent for additional  space. I see no evidence to suggest the Respondent was actuated by malice when he served the Notice  on the Appellant.  On the evidence I cannot fault the Hon. Chairman of the Tribunal finding that the Respondent had a genuine intention to use the premises occupied   by the appellant to expand its business.

18. In the premises  and after  careful  evaluation  of the evidence presented before  the Tribunal  I am  satisfied  that the Chairman  of the Tribunal  reached the correct  determination  on the facts  and the law. There is no basis to interfere with his findings and the decision he reached. There is no merit in the appeal and the same is ordered dismissed with costs to the respondent.

Judgment dated signed and delivered electronically at Nakuru this 7th day of 2020.

J M MUTUNGI

JUDGE