Earnest Ndichu v Veronica Wanjiru Munene [2022] KEBPRT 12 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E016   OF 2021  (NAKURU)

EARNEST NDICHU..................................................................APPLICANT/TENANT

VERSUS

VERONICA WANJIRU MUNENE................................ RESPONDENT/LANDLORD

RULING

1.  The applicant filed a reference dated 7th September 2021 complaining that the Landlord served him with an illegal text message dated 3rd September 2021 which does not comply with provisions of Section 4(2) of Cap. 301, Laws of Kenya.

2.  The applicant simultaneously filed a notice of motion dated 7th September 2021 seeking restraining orders against the Respondent from interfering with his peaceful tenancy on land parcel known as Uns.  Residential plot No. 14, Nakuru Municipality pending hearing  and determination of the suit.

3.  He also seeks to be allowed to file a reference out of time.

4.  The application is supported by the affidavit of the applicant sworn on even date and the grounds on the face of the application.  It is deposed that the applicant has been a tenant on the said land parcel since November 2020 where he runs a car wash, butchery and Nyama choma business.  The applicant annexes as ‘ENN1’ a trade licence for the said business dated 12th May 2021.

5.  According to the applicant, the monthly rent agreed upon verbally between him and the Respondent is Kshs.5000/-.  The applicant was to meet the cost of installation for electricity and water and construct a pit latrine.  The costs thereof would be offset from monthly rent.

6.  The applicant informed the Respondent upon completion that he had spent Kshs.150,000/- on the developments.  He also constructed a shed, butchery and Restaurant at a cost of Kshs.800,000/-.  He has annexed photographs marked ‘ENN3’ for the said developments.

7.  According to the applicant, he has never been served with any valid legal notice to vacate or alter terms of his tenancy but the Respondent and her husband have been sending SMS messages to him threatening that he should vacate without giving any reasons nor addressing the costs of developments.

8.  The applicant states that he has no other source of income other than the said car wash and butchery business and would suffer great loss and damages if evicted.

9.  The applicant came to this Tribunal in view of his imminent danger of eviction based on an invalid notice.

10. The applicant was given  temporary orders of injunction at the ex-parte stage which forestalled the feared eviction.

11. The application is opposed through the Respondent’s replying affidavit sworn on 1st December 2021 wherein she admits that the applicant approached her with an interest of leasing the suit property which was declined as she had an intention of developing the same.

12. The Respondent deposes that she has been out of the country for over 10 years from where she received reliable information that the applicant had constructed illegal structures and changed user of her land into commercial without her consent.

13. Following the said information, she sent emissaries and several messages to the applicant to vacate the land since he was a trespasser but he ignored or neglected it.  A demand letter dated 2nd November 2021 was sent to the applicant marked VMM2.

14. She deposes that she has never received any rent from the time the applicant trespassed on her property neither did she consent to the construction of any structure or a pit latrine on the land.

15. As such the Respondent prays for dismissal of the application contending that this Tribunal has no jurisdiction to deal with the case which was an Environment and Land matter.

16. The matter was ordered to be canvassed by way of written submissions and only the Respondent complied.  I shall address the submissions in my analysis of issues set out hereunder.

17. The issues for determination going by the pleadings are:-

(a) Whether this Tribunal has jurisdiction to hear and determine the case.

(b) Whether the applicant is entitled to the reliefs sought in the application.

(c) Who is liable to pay costs.

18. This Tribunal’s jurisdiction is conferred by the landlord and Tenant (Shops, Hotels & Catering Establishments) Act Cap. 301, Laws of Kenya. Section 2 thereof defines a “controlled tenancy” to mean a tenancy of a shop, hotel or catering establishment:-

“(a) Which has not been reduced into writing,

(b) Which has been reduced into writing and which:-

(i) is for a period not exceeding five years or

(ii) Contains a provision for termination otherwise than for breach of covenant within five years from the commencement thereof or

(iii) relates to premises of a class specified under subsection (2) of this section”.

19. The term “tenant” is defined under the same section in relation to a tenancy to mean the person for the time being entitled to the tenancy whether or not he is in occupation of the holding and includes a subtenant”.

20. The term landlord in relation to a tenancy is defined 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”.

21. In the case of Republic – vs- Chairperson, Business Premises Rent Tribunal at Nairobi & Another ex-parte Suraj Housing & Properties Limited & 2 Others (2016) eKLR, the court cited the decision in Pritam – vs- Ratilal & Another (1972) EA 560 at paragraph 28 as follows:-

“As stated in the landlord and Tenant (Shops, Hotels and Catering Establishments) Act itself, it is an Act of Parliament to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and matters connected therewith and incidental thereto.  The scheme of this special legislation is to provide extra and special protection for tenants.  A special class of tenants is created.  Therefore, the existence of the relationship of landlord and tenant is a pre-requisite to the application of the Act and where such relationship does not exist or it has come to or been brought to an end, the provisions of the Act will not apply.  The applicability of the Act is a condition precedent to the exercise of jurisdiction by a tribunal otherwise the Tribunal will have no jurisdiction.  There must be a controlled tenancy as defined in Section 2 to which the provisions of the Act can be made to apply.  Outside it, the Tribunal has no jurisdiction”.

22. In this case, the applicant has not tendered any evidence on how the landlord/tenant relationship was created.  He has not demonstrated any payment of rent or any form of consent given by the Respondent to effect developments on the suit premises and recover the expenses through monthly rent deductions.

23. The SMS messages written to the Respondent clearly show that the applicant was an uninvited guest in the suit premises.  This coupled with the fact that the property was residential in terms of user and the fact that the Respondent does not reside in Kenya persuades me to believe in the position taken by her.

24. It is imperative to note that the applicant did not file a further affidavit to controvert depositions made by the Respondent in the replying affidavit.  It is therefore believable that the applicant took advantage of the absence of Respondent to invade the suit premises.

25. The upshot of my above analysis is that there is no proof of existence of a controlled tenancy within the meaning of section 2 of cap. 301.  As such this tribunal has no jurisdiction to hear and determine the instant dispute.

26. Flowing from the said conclusion, the applicant is not entitled to the reliefs claimed in the application and his application and the entire suit are candidates for dismissal.

27. In the premises the final orders that commend to me are:-

(i)       The application and reference herein is hereby dismissed with costs to the Respondent for want of jurisdiction.

(ii)      The ex-parte orders given herein on 21st September 2021 are hereby discharged and/or vacated forthwith.

(iii)     The Respondents costs are assessed at Kshs.25,000/- against the applicant.

It is so ordered.

RULING DATED, SINGED AND DELIVERED VIRTUALLY THIS 24TH DAY OF MARCH 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling delivered in the absence of parties: