Dube v Waithaka & another [2022] KEBPRT 727 (KLR)

Dube v Waithaka & another (Tribunal Case E414 of 2022) [2022] KEBPRT 727 (KLR) (Civ) (20 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 727 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E414 of 2022

Gakuhi Chege, Vice Chair

September 20, 2022

Between

Hawa Dube

Applicant

and

David Waithaka

1st Respondent

James Kirimi

2nd Respondent

Ruling

1. The applicant filed a reference dated May 13, 2022 under section 12(4) of cap. 301, Laws of Kenya complaining that the landlord issued a notice to vacate the suit premises without any justifiable reason with effect from June 12, 2022.

2. The applicant further filed a motion dated May 13, 2022 seeking restraining orders against the respondents from evicting, interfering, harassing, threatening and/or intimidating her pending hearing and determination of the case. She further seeks for an order directing issuance of rent receipts.

3. The application is supported by an affidavit sworn on May 13, 2022and the grounds on the face of the application. It is deposed that the applicant has occupied the suit premises for the last one year paying monthly rent of Kshs.12,000/- which had been paid upto April 2022.

4. On May 2, 2022, the applicant was served with a final notice to vacate the suit premises with effect from April 12, 2022. The notice is marked ‘HB-1’. She denies any agreement with the landlord to vacate the suit premises. As such, the notice came as a shocker. The notice was however addressed to the 2nd respondent.

5. It is the applicant’s case that the said notice is not in the prescribed form and was not only short but failed to consider her interest as a tenant who had paid rent in full. She therefore came to this Tribunal to prevent her eviction from the suit premises which was her only source of livelihood.

6. Interim orders were issued by the Tribunal on May 17, 2022pending hearing inter-partes on May 23, 2022.

7. The application is opposed through the 1st respondent’s and 2nd respondent’s joint replying affidavit sworn on June 15, 2022 wherein it is deposed that the two are landlord/tenant and not landlord/agent as alleged by the applicant.

8. It is deposed that the two entered into a tenancy agreement on September 13, 2021which is annexed as ‘DW1’ with the agreed monthly rent being Kshs.12,000/-. The agreement prohibited subletting.

9. The 1st respondent upon discovering that the 2nd respondent has agreed that he utilizes his rent deposit and vacates therefrom by February 12, 2022.

10. However, the applicant who was operating a tea kiosk with permission of the 2nd respondent refused to vacate from the suit premises leading to the 1st respondent issuing the impugned notice marked ‘DW2’ on March 25, 2022.

11. The applicant filed a further affidavit sworn on July 18, 2022 wherein she deposes that she was unaware about the tenancy agreement between the Respondent’s agent and received rent as an agent. She deposes that the lease will in any event expire on September 13, 2022.

12. The application was directed to be disposed of by way of written submissions but only the applicant complied. I shall consider the submissions together with the issues for determination.

13. I am now required to determine the following issues:-a.Whether there exists a landlord/tenant relationship between the applicant and 1st Respondent.b.Whether the applicant is entitled to the reliefs sought herein.c.Who is liable to pay costs?

14. The applicant states in her application that she went into occupation of the suit premises under an arrangement entered into with the 2nd Respondent who sublet the same at a daily rent of Kshs.400/-.

15. According to the 1st Respondent, the tenancy agreement entered into between him and the 2nd Respondent prohibited subletting at clause 3 as follows:“No subletting of the shop to any other person without a written consent from the Landlord”.

16. When the landlord/1st respondent discovered the illegal subletting, he intervened and it was agreed that the 2nd respondent vacates the suit premises by February 12, 2022. The applicant however opposed the arrangement.

17. The applicant submits that the 2nd respondent mispresented himself as an agent of 1st respondent and as such paid him rent hoping that the landlord would in turn be paid rent. It came as a shocker to the applicant that the money was not submitted to the landlord. The notice to vacate was addressed to the 2nd respondent.

18. The tenant submits that her tenancy relationship with the respondents is a controlled one under section 2 of cap 301and she was thus a protected tenant. As such the notice dated 25th March 2022 is invalid as it is not in the prescribed form under section 4(2) of cap 301, Laws of Kenya.

19. It is further submitted that section 5(1) of cap 301, stipulates that where a landlord is himself a tenant, the termination of the landlord’s tenancy shall not of itself terminate a controlled sub-tenancy and that the termination of a sub-tenancy ought to be in accordance with the Act.

20. In the instant case, it is the landlord’s case that the sub-tenancy entered into between the applicant and the 2nd respondent went against an express stipulation/term of the tenancy agreement dated September 13, 2021 marked as annexure ‘DW1’. The respondent admits as much in the joint affidavit sworn with the landlord on June 15, 2022.

21. In the case of Heptulla v Noormohaned (1984) eKLR, the Court of Appeal cited the decision in Ministry Amar Singh v Kulubya (1963) EA 408 at page 414 letter D as follows:-“Ex-Turpi causa non oritur actio. This old and well known legal maxim is founded in good sense and expresses clear and well recognized legal principle, which is not confided to indictable offences. No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal if the illegality is duly brought to the notice of court and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality, the court ought not to assist him”.See also the cases of Mike Munga Mbuvi v Kenya Airways Limited (2017) e KLR, Livingstone Gitonga Muchungi & 2others v ICEA Lion Life Assurance Company Limited.

22. The applicant having entered into a sub-tenancy agreement with the 2nd Respondent in contravention of clear terms of the head tenancy agreement outlawing such arrangement makes the agreement illegal and unenforceable.

23. Consequently, I find and hold that the continued occupation of the suit premises by the applicant on the basis of an illegal sub-tenancy arrangement with the 2nd Respondent is legally untenable and this Tribunal under section 12(1) (e ) as read with section 12(4) ofcap 301is empowered to intervene and make appropriate orders of vacant possession to avoid a multiplicity of suits.

24. As regards costs, the same are in the Tribunal’s discretion under section 12 (1) (k) of cap 301, Laws of Kenya. I note that the applicant finds herself in the current legal predicament on account of the conduct of 2nd respondent during the process of illegal sub-letting of the suit premises. However the two Respondents appear to have joined hands in defeating the applicant’s claim herein. In the circumstances, I shall order that each party meet own costs.

25. In conclusion therefore, the final orders which commend to me in this matter are:-i.The applicant’s reference dated May 13, 2022 and the application of even date is dismissed with each party bearing own costs.ii.The applicant shall vacate the suit premises on or before October 31, 2022 and in default shall be evicted therefrom with the assistance of a licensed auctioneer who shall be accorded security by OCS, Pangani Police Station.iii.The interim orders shall remain in force until October 31, 2022whereupon the same shall automatically stand vacated/discharged.

It is so ordered.RULING DATED, SIGNED & VIRTUALLY DELIVERED THIS 20TH DAY OF SEPTEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Miss Oketch for TenantMiss Wanjiru for Respondents