George Kibui v John Irungu Maina [2021] KEBPRT 228 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 57  OF 2018  (NYERI)

GEORGE KIBUI.......................................................................TENANT/APPLICANT

VERSUS

JOHN IRUNGU MAINA.............................................LANDLORD/RESPONDENT

JUDGMENT

1.  On 27th August 2018, the Landlord issued the Tenant/applicant with a notice to terminate tenancy on the grounds of:-

(i)    Failure to remit monthly rent promptly.

(ii)    Being in rent arrears for more than two months together with rent balances of several months totaling to Kshs.53,000/-.

(iii)  The family intends to take possession for use.

(iv)   The Landlord intend to carry out repair works.

2.  The Tenant filed a reference on 13th September 2018 opposing the said notice.

3.  On 9th December 2019, the Landlord wrote to the Tribunal stating that due to the demise of his son one Samuel Maina Irungu, his family had decided to sell the business premises being plot no. 15 Gacharageini in order to educate the deceased’s children  who were all in school at different levels.

4. The said son is said to have died on 7th December 2019 and a burial permit in that regard was filed in this matter.

5. The Landlord in addition indicated that he wanted to offset a long outstanding loan of over Kshs.1. 5 million owing to Equity Bank.

6.  An electronic statement of the loan balance was also filed in this matter indicating that the loan amount stood at Kshs..1,552,372/- as at 16th January 2020 and a sum of Kshs.162,423/- was in arrears.

7.  The matter to proceeded by way of viva voce evidence before Hon. Mbichi Mboroki, Chairman (as he then was) and this judgment is written pursuant to the provisions of order 18 Rule 8 of the Civil Procedure Rules, 2010.

8. The Landlord testified on 25/3/2019 as pw1 to the effect that the Tenant is in occupation of 1st floor of the suit premises where  he runs a bar at a monthly rent of Kshs.13000/- since April 2017.

9. The landlord confirmed that the Tenant was always paying rent to the bank but had not paid for the month of March 2019 when the matter was proceeding.

10. He stated that the family wanted the Tenant to vacate the premises for own use.  The Landlord stated that he operates a butchery on ground floor.  There was no Tenant on the basement.

11. It was the Landlord’s evidence that the premises occupied by the Tenant would be converted into a restaurant to enable him repay the loan of Kshs.1. 7 million which he was unable to pay at a rate of Kshs.40,000/- per month to Equity Bank.

12. The Landlord testified that the Tenant had sublet the premises to one Amos Kariuki.  He confirmed that the Tenant was a teacher who had to employ people to do business in the suit premises.

13. Pw2 was Joyce Muthoni Irungu, the wife of the Landlord who testified on 12th March 2020 and stated that they wanted to sell the plot because their son died and had children 2 of whom were by then  in secondary school and three (3) in primary school.  There was already a buyer for the property.

14. In cross examination, pw2 stated that the issue of selling the house came up after death of their son.

15. The Tenant testified without calling any witness and confirmed having been served with the termination notice which set out 4 grounds.

16. He objected to the notice as the only rent not paid was for March 2020 in the sum of Kshs.13,000/-.

17. He stated that the Landlord was objecting to renewal of the lease although he was ready to pay rent.  The suit premises had 3 tenants.  His business was on first floor of the building.  He said that he had a loan of Kshs.1. 8 million.

18. In cross examination, the Tenant stated that the agreed monthly rent was Kshs.13000/- and that there was no rent increment.  He however stated that there was a written agreement without a rent escalation Clause.

19. He further stated that he had a manager who runs his business.

20. Having analysed the evidence tendered by both parties, I am now called upon to determine the following issues:-

(a) Whether the Landlord’s notice to terminate tenancy should be upheld or dismissed.

(b) Who is liable to pay costs of the reference.

21. The Landlord’s notice was premised on 4 grounds which I have set out at paragraph 1 of this judgement.  I shall analyse each ground separately.

22. The first ground is premised upon failure to remit rent promptly.  No evidence was tendered by the Landlord or his witness to prove that the Tenant was in any rent arrears.  As such this ground fails.

23. The second ground is tied to the first one as it relates to non payment of rent.  As observed above, no evidence has been adduced to prove the same.

24. Ground three is that the family intended to take possession of the premises for own use.  The Tenant did not in his evidence attack this ground and no evidence to controvert the intention was adduced.

25. The Landlord stated that his family intended to start a restaurant in the premises occupied by the Tenant.  He testified that they were already running a butchery on the ground floor of the same building which though disputed by the Tenant was not said to belong to any other known person.  I have no reason to doubt the intention.

26. I note that when pw2 testified, she indicated that their son had died and the family now intended to sell the building to another person to educate his children.  This reason is however not one of the grounds cited in the termination notice and do not fall to be considered.  It is not also anchored on any provision under Section 7 of Cap. 301, Laws of Kenya.

27. The Tenant did not in any way allude to ill motive on the part of the Landlord in requiring possession nor to any  bad blood between them.

28. Section 7(g) of Cap. 301, Laws of Kenya provides for termination of tenancy on grounds that on the termination thereof, the Landlord himself intends to occupy for a period of not less than one year the premises comprised in the tenancy for the purposes or partly for the purposes of a business to be carried on by him therein or as his residence.

29. As stated above, I have no reason to doubt that the Landlord intended to do so.  The law allows a Landlord to take possession of a premises on the ground set out in the notice with a view to running own business for more than one (1) year.

30. In the premises and without considering any other ground, I find and hold that the Landlord has established ground no. 3 of the notice.

31. In this regard, I wish to cite the decision of the Court of Appeal in Kasturi Limited – vs- Nyeri Wholesalers Ltd (2014) eKLR at paragraph 15 where it was held as follows:-

“15. On the counterclaim for vacant possession of the premises, we cite with concurrence the dicta by Lord Halisbury in Jacob – vs- Booths Distillery Co. 85 LTR at 262 where he stated that “there are somethings too plain for argument”.  In the present case, it is plain that the tenancy agreement between the parties expired on 14th April 2009 and was never renewed.  It is also plain that the appellant received a notice for non renewal of tenancy.  We concur with the learned Judge that the appellant has no triable issue in the counterclaim for vacant possession.  It is the duty of the courts to ensure that no individual is prevented from taking possession and or enjoying their property.  A tenant cannot impose or force him herself/itself on a Landlord”. (emphasis added)”.

32. I therefore proceed to make the following final orders:-

(a) The Landlord’s notice to terminate tenancy dated 27th August 2018 succeeds on ground no. 3 thereof.

(b) The Tenant shall vacate from the suit premises known as Down Town villa “situated on Plot no. 15, Kiriaini within the next Thirty (30) days hereof failing which the Landlord shall be at liberty to take vacant possession through a licensed auctioneer.

(c ) The O.C.S within whose area the suit premises is situated shall provide security during enforcement of the Tribunal order granted above.

(d) Costs of the Reference assessed at Kshs.60,000/- awarded to the Landlord against the Tenant.

It is so ordered,

DATED, SIGNED & DELIVERED THIS 24TH DAY OF SEPTEMBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Judgment read in absence of parties.