Fredrick Kipngetich Rono v Moi Teaching & Referral Hospital Staff Pension Scheme [2021] KEBPRT 345 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 28  OF 2021  (ELDORET)

FREDRICK KIPNGETICH RONO...................................................TENANT/APPLICANT

VERSUS

MOI TEACHING & REFERRAL HOSPITAL

STAFF PENSION SCHEME......................................................RESPONDENT/LANDLORD

RULING

1. Through an application dated 27/5/2021, the Tenant/applicant is seeking that pending the hearing and determination of the Reference, a temporary injunction do issue against the Respondent from disturbing the Applicant’s occupation of premises known as Eldoret Municipality Block 4/357, evicting, distressing, attaching or physically taking away/removing the Applicant’s property, terminating the tenancy/lease, locking up and /or barring access to the leased premises, blocking his parking space, giving the parking space to a new tenant, evicting or in any other manner interfering with the Applicant’s tenancy on the suit premises.

2. He further seeks that the Landlord’s notice to terminate terms of tenancy dated 31/3/2021 be struck out with costs.

3. The application is supported by the tenant’s affidavit sworn on 27/5/2021 and the grounds on the face of the application.

4. The relationship between the parties herein began on 20th September 2019 and was renewed by a fresh lease agreement dated 16th August 2019 for a further period of three (3) years upto 30th September 2022.

5. The Tenant developed the said plot where he put up a number of business premises on what was initially an open space measuring approximately one acre.  This was financed through a loan from a bank which the tenant was still repaying.

6. The tenant contends that he has spent about Kshs.20 million in construction costs which he is yet to recoup.

7. On or about 11th April 2021, the Respondent served the Tenant with an illegal notice to terminate tenancy dated 31st March 2021 with effect from 30th June 2021 in complete disregard of the lease agreement and provisions of Cap. 301, Laws of Kenya.  As a result, the tenant was threatened with eviction which precipitated the filing of this suit.

8. The application is opposed through the replying affidavit of Solomon Koros, the chairperson of the Landlord/Respondent who admits existence of the Landlord/Tenant relationship pleaded by the Tenant.

9. He also admits issuance of notice to terminate tenancy dated 31st  March 2021 with effect from 30th June 2021 pursuant to clause 6(b) of the lease agreement dated 1st October 2019.  The notice is marked “SK 2”.

10. The grounds upon which termination is sought is that the Landlord intends to carry out substantial works of construction and renovation which cannot be carried out without obtaining vacant possession of the premises.

11. According to the Landlord, no good reasons have been advanced by the tenant to oppose the notice of termination of tenancy and he has not disputed the reasons given for termination of tenancy.

12. The tenant is alleged to be in rent arrears of Kshs.570,000/- as per annexure SK 6.

13. At a Board meeting held in February 2021, the Landlord’s trustees resolved to build/construct a ultra modern shopping complex on the suit premises which was a valid reason for terminating the lease.  The Landlord has annexed the project plan marked “SK7”.

14. According to the Landlord, the two permanent houses and toilet on the suit property belong to it and it is therefore not true that the tenant has invested over Kshs.20 million.

15. It is the Respondent’s case that the Tenant illegally constructed the temporary mabati structures valued at no more than one million Kenya shillings.

16. Clause 6 (c ) of the lease agreement provided that the tenant shall not make alterations to the premises without the consent of the Landlord and as such any structure erected on the suit premises ought to be demolished and the tenant surrender vacant possession thereof.

17. According to the Landlord, the said structures are unauthorized as no approval was sought from the County Government.

18. At paragraph 18, of the replying affidavit, the tenant was said to be in rent arrears of Kshs.110,000/- as at 14th June 2021 and as such the tenant has approached this court with unclean hands.

19. On 6th July 2021, the Applicant filed a supplementary affidavit sworn on 6th July 2021 in response to the issues raised in the replying affidavit.

20. He denies being in rent arrears and undertakes to continue paying rent.  He says that the distress for rent action was occasioned by the Landlord’s renege on agreed 30% discount during the Covid-19 pandemic lockdown.

21. The tenant states that he has legitimate expectation to use the demised premises upto 30th September 2022 together with his subtenants.

22. No resolutions of the Board meeting of February 2021 has been annexed neither has the Landlord demonstrated it has funds to undertake the proposed construction.

23. According to the tenant, the structures referred to as illegal by the Landlord were  constructed in the currency of the first lease but the Landlord still renewed the lease for a further term of 3 years.  All the developments were done with the consent of the Landlord or its agent and all approvals were obtained from the county Government of Uasingishu.

24. According to the tenant, if the Landlord was allowed to evict him and his tenants during the current hard economic times, they will suffer irreparable harm and loss which includes the substantial developments done on the suit premises before recouping the investment.

25. I have examined the pleadings as well the submissions filed by both parties.  I note that the further affidavit filed by the Landlord and sworn by Solomon Koross on 9th July 2021 was filed without leave and in contravention of order 51 Rule 14 of the Civil Procedure Rules which only allows a supplementary affidavit by an Applicant served with a replying affidavit with leave of the court.  No such opportunity is granted to a Respondent and it is inconceivable on what basis the said affidavit was filed.  I proceed to strike it out of the record forthwith.

26. In an application of this nature, I am required to determine whether the applicant has brought himself within the principles espoused in the celebrated case of Giella – vs- Cassman Brown & Co. Ltd (1973) EA 358.

27. The Applicant has demonstrated that he has a valid lease agreement which expires on 30th September 2020.  He has also demonstrated that he is in possession of the suit premises and has invested money in the suit premises and sublet to other tenants who shall be affected by any termination in the pendency of the Reference herein.

28. The tenant has contended that the suit premises is his source of livelihood and that he has legitimate expectation to remain on the suit premises until 30th September 2022.

29. No board resolution has been annexed to the replying affidavit to prove the intention of proposed construction of a ultra modern shopping complex on the suit premises.

30. Whatever the value of the investment put up by the tenant, there is need to preserve the same in the pendency of hearing the Reference.

31. The issue of alleged rent arrears owing by the tenant was raised in the replying affidavit of Solomon Koros which at one point states a figure of Kshs.570,000/- and Kshs.110,000/-which is contradictory.  I hold that the issue was introduced with a view of muddy the  waters despite not being one of the grounds of termination of tenancy under the impugned notice.

32. I therefore find and hold that the tenant has brought himself within the principles for the grant of a temporary injunction.

33. In the premises, I proceed to make the following orders:-

(a) The application dated 27/5/2021 is allowed in terms of prayers 3 & 5 thereof.

(b) Prayer 4 shall proceed to the full  hearing of the Reference.

(c) Costs of the application shall be assessed after the conclusion of the main Reference.

It is so ordered.

DATED, SIGNED AND DELIVERED 3RD DAY OF SEPTEMBER, 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Mr. R.M. Wafula for Tenant/Applicant

Mr. Yego for the Landlord/Respondent

Mr. Yego:  I seek for a hearing date for the Reference on a priority basis.

I also pray that the Landlord be allowed to file a supplementary affidavit in respect of the Reference.

Mr. Wafula:  I am opposed to filing of the supplementary affidavit.

Order:

(1) Both parties shall file and exchange witnesses’ statements and documents in support of their respective cases within the next 14 days hereof.

(2) The Tenant shall continue paying the reserved  rent as and when the same falls due and payable.

(3) Mention on 21/9/2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL