Economic Co-operative Society Ltd v Majeed M. Jasho [2015] KEHC 2588 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  130 OF 2013

ECONOMIC CO-OPERATIVE SOCIETY LTD...........PLAINTIIFF

VERSUS

MAJEED M. JASHO…………....................…..……DEFENDANT

JUDGMENT

By  a plaint  dated 21st March 2013 ( fast track) and filed in court  on     22nd April 2013 the plaintiff  Economic Co-operative  society  ltd sued  Majeed  M. Jasho trading as “ LAS AIR FLIGHT “ seeking   orders for

Vacant possession of the tenanted premises situated on plot No.  LR 209/774 on Monrovia Street in the City County or Nairobi, in accordance with the Landlord’s Notice dated 7th January 2010.

An order that the plaintiff may break open the premises in order to get access to the said premises.

Shs 93,250 arrears of rent as aforesaid.

Kshs 600,555 mesne profits at the rate of shs 19,196 per month from 31st January 2013 until the defendant delivers vacant possession of the said premises.

Costs of this action.

Interest on (b), (c) and (d) above.

Any other further relief   which this Honourable court may deem just.

The above prayers are grounded on  the facts that the plaintiff is the lawful and registered  owner of all  that parcel of land  known as LR NO.209/774 situate  on Monrovia  Street in the City of Nairobi  together with  all the buildings  and improvements  erected  and built  thereon.

And that  the defendant  was a monthly  tenant  of the plaintiff  in respect  of certain shop premises on the described  premises, situated on the  ground floor  of the said  property  at an agrees  monthly  rent of shs 8,500 per month   or such other rate  as may vary  from time to time to  reflect  the prevailing market rates.

That  on or about  the 7th day  of January 2010, the plaintiff served  upon the defendant  a Landlord’s  notice  to terminate  the said tenancy  pursuant  to the landlord  and tenant (shops, hotels and catering establishments) Act ( cap 301) on grounds that the defendant  had defaulted in rent  payment  for a period exceeding  2  months  after such rent had  become  due and payable to the plaintiff in respect of the said premises.

Further, that in breach of the aforesaid  notice to terminate tenancy, the defendant failed to notify the plaintiff in writing  within 1 month after receipt  of the said  notice whether  or not the defendant agreed  to comply  with the said  notice  from 31st March 2010  and has  in further breach, continued  after the  said date to occupy the demised  premises as a trespasser thereat.

The defendant despite  being  served  with summons  to enter  appearance  neither  entered appearance  nor filed  defence  and on  25th June 2013  the  court entered  interlocutory  judgment  in favour of the plaintiff.

The suit was thereafter set down for formal proof on 30th October 2014 and I had the occasion to hear the plaintiffs who testified through Mr Sunil Salim Chagani the administrative manager of the plaintiff.  He relied on his statement dated 21st March 2013 and filed in court on 22nd April 2013 which statement was adopted as his evidence in chief.  He then went further to highlight the salient features of his statement, which was in essence a replica of the pleadings as filed in the plaint.

Mr Chagani testified  on oath  and stated  that the  plaintiff leased to the defendant  the suit premises in 2004  at a  monthly rent of shs 8500 upto June 2009 and that the said rent  was only revised after re evaluation of the property and he was charged  shs 15,000/- from July 2009 June 2010, with a 10%  yearly increment from July 2010-June 2011;July 2011-June 2012 and July  2012 –June 2013 by which time it  had  reached  shs 19,965.  By June 2014, the rent was 21,962 which rent the defendant has adamantly refused to settle despite the plaintiff sending him invoices since March 2010.  That  on 7th January 2010 the plaintiff was served with a notice  to terminate  tenancy  pursuant  to the provisions  of Section 4(2) of the Landlord /Tenant Act (cap 301) for failure to pay rent but that  the defendant  has never bothered  to respond  or object  to the said notice  and continues to occupy the said  premises  without bothering  to remit  rent or rent arrears  which has  now accumulated.

The plaintiff produced  documentary evidence  to show that in 2012  the defendant  approached  the plaintiff  seeking  to sign a lease agreement  and settle  the arrears  and the plaintiff  was willing but again he defaulted.  He testified that the outstanding rent todate is shs 1,145,022 from the defendant since 2010 as accumulated and as tabulated in the statement of accounts P exhibit 12.

The plaintiff also claimed for 600,558 being mesne profits as the defendant is still in occupation of the premises by force despite the tenancy terminating following the notice of 7th January 2010.  He prayed for  an order to allow  the plaintiff break into the said  premises  and to forcefully evict the defendant  who has remained  non  responsive  to amiable  mode of vacating  the premises  as the plaintiff  is losing  business.

Several correspondences produced  also  showed that the defendant  had  always  been given  an opportunity  to either  leave or  pay rent or both  but he is adamant.

The plaintiff exhibited notice to terminate tenancy, customer balance summaries demand notice before action, letter to Business Premises Rent Tribunal, letter from Business Premises Rent Tribunal, notices to Majeed, defendant emails in 2012.

The plaintiff closed its evidence with only Mr Chagani testifying and producing documentary evidence to prove their claim against the defendant.

In his  written submissions filed  in court on 17th November 2014, the  plaintiffs  advocate  Mr Saenyi , for the  firm of Mohamed  & Sam Nakay advocate reiterated  the pleadings  and testimony  by the plaintiff  and prayed  for judgment  as sought  in the said plaint and testimony.

The only issue for determination is whether the plaintiff has proved its case against the defendant on a balance of probabilities.

I have carefully considered the plaintiffs claim as pleaded, supported by the testimony of Mr Sunil Chagani and the documentary evidence produced in support of the claim.  I am satisfied that on a balance of probabilities, the plaintiff has proved his claim against the defendant and therefore merits the orders sought for the following reasons:

The defendant‘s tenancy with the plaintiff was never disputed.

The termination of the tenancy by way of notice dated 7th January 2010 was never objected   to and the same was procedural and lawful, in accordance with Section 4 (2) of Cap 301 Laws of Kenya.

The defendant  has continued  to occupy the premises  belonging to  the plaintiff  as  if  he was a  tenant, yet  without payment  of any rent and against the plaintiff’s will.

The defendant has refused to amiably pay rent arrears and or vacate the premises and/gave vacant possession to the defendant Landlord.

The plaintiff has demonstrated that they are owed rent arrears as per the statement of 22nd October 2014 produced in evidence.

Accordingly, I enter final judgment in favour of the plaintiff against the defendant in the following terms:

That the defendant do give vacant possession to the plaintiff premises situated on plot No.  LR 2009/774 on Monrovia Street, Nairobi City County, immediately upon service of certified copy of this judgment and decree upon them.

That  in default  of complying  with order  No (1) above, the plaintiff  do seek the  assistance  of a qualified  court bailiff  to break  the locks to the said premises and  gain  access and to forcefully but in a dignified  and orderly manner  evict the defendant  from the said premises.

That the defendant   do pay to the plaintiff all rent arrears accrued from 2010 to 30th October 2014 totaling ksh 1,145,022 inclusive of mesne profits.

The plaintiff shall have interest on the sum of kshs 1,145,022 accruing thereon at court rates from the date of filing of suit herein until payment in full.

The plaintiff shall have costs of this suit paid by the defendant.

Dated, signed and delivered at Nairobi this 12th day of May 2015.

R.E. ABURILI

JUDGE

12. 5.2015

Coram R.E. Aburili J

C.C. Kavata

Mr Saenyi for the plaintiff

No appearance for the defendant

Court - Judgment read and pronounced in open court as scheduled.

R.E. ABURILI

JUDGE

12. 5.2015