Haron Juma Mogusu & Lucas Ntereba Mogoi v John Kabia Mathenge [2021] KEBPRT 183 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO E031  OF 2021  (NAIROBI)

HARON JUMA MOGUSU...................................................................1ST APPLICANT/TENANT

LUCAS NTEREBA MOGOI………….………....……………..…....2ND APPLICANT/TENANT

VERSUS

JOHN KABIA MATHENGE…………..………………………… RESPONDENT/LANDLORD

RULING

1.  By a motion dated 20th April, 2021, the Tenants/Applicants have moved this Tribunal seeking restraining orders against the landlord/Respondent from evicting, locking or in any other way interfering with the Tenant’s access to the suit premises  pending hearing and determination of the application.

2.  They further seek that the OCS, Mihango Police Station do ensure peace and compliance of the orders.

3.  The application is supported by the affidavit of the 1st Applicant sworn on 20th April 2021 and the grounds set out on the face of the application.

4.  The Tenants operate a carwash business on the Respondent’s premises located at Utawala, opposite Administration Police Training College at a monthly rent of Kshs.25,000/-.

5.  The relationship between the tenants and the Landlord was cordial until earlier this year when the Landlord started to demand payment of higher rent and in the process threatened to evict them.

6.  On 18th March 2021, the Landlord issued a notice to give vacant possession immediately which was addressed to the 2nd Applicant on grounds that he desired to develop the property.

7.  Efforts to convince the Landlord to consider the economic situation were futile.  As a result, the tenants came to this Tribunal to seek protection so that they could continue carrying on business without being interrupted and intimidation by the Landlord.

8.  The application is opposed through the Landlord’s replying affidavit sworn on 5th July 2021 wherein it is admitted that the Applicants are his tenants on the suit premises paying a monthly rent of Kshs.30,000/-.

9.  The Tenants are said to have started defaulting in rent payment immediately upon taking possession of the premises in October 2018.

10.   Upon being served with an eviction notice, the tenants paid Kshs.115,000/-.  The Mpesa statements annexed to the replying affidavit indicate additional rent payments.

11.   According to the Landlord, the applicants completely ignored his pleas to pay rent arrears but instead ran to this Tribunal to seek orders while at the same time continue to use the premises without paying monthly rent which amounts to abuse of court process.

12.  The Landlord deposes that the tenants were in rent arrears of Kshs.635,000/- despite the fact that they have been operating business as usual notwithstanding the pandemic.  The Landlord seeks for payment of the said amount calculated upto July 2021.

13.   The application was ordered to be disposed of by way of written submissions and both parties complied.

14.   I have looked at the pleadings and the submissions and the issues for determination are:-

(a) Whether the tenants are entitled to an order of temporary injunction.

(b) Who is liable to pay costs of the application?

15.    It is not in dispute that the applicants are the Respondent’s tenants in the suit premises where they run a carwash.

16.   Whereas the tenants contend that the monthly rent payable is Kshs.25,000/-, the Landlord contends that the same was agreed at Kshs.30,000/-.

17.   On 21st April 2021, this Tribunal directed the applicants to file evidence of payment of rent before the hearing date.  The order was however not complied with.

18.   According to the tenants, the instant dispute was precipitated by the Landlord’s intention/demand for higher rent.  However no evidence of such demand has been presented before the Tribunal neither is the amount of alleged new rent indicated.

19.  The applicants have instead annexed a letter dated 18th March 2021 by the landlord in which he demands immediate vacant possession of the suit premises to enable him carry out construction of  a permanent house.

20.  The said notice does not comply with section 4 (2) of Cap. 301, Laws of Kenya as it is not in the standard form neither does it give the requisite 2 months for compliance.  It is thus null and void.

21.  The Landlord in his replying affidavit does not state that he wishes to have possession of the suit premises to enable its development.  Instead he blames the tenants for non payment of rent.

22.   According to the reference filed by the tenants on 21st April 2021, they complain that the Landlord intends to evict them from the rented space.

23.  I have read the tenants’ counsels submissions wherein it is argued that the tenants are bound to be evicted from the suit premises where they earn their daily bread and are bound to be subjected to untold suffering as they have not found an alternative site to carry out their business.

24.   The landlord’s counsel refers to a supplementary affidavit filed by the applicants on 5th august 2021 which is not on record neither have I seen the further replying affidavit by the Respondent.

25.   The landlord’s case is that no evidence of payment of rent has been exhibited by the tenants under section 107, 108 and 109 of the Evidence Act.

26.   It is submitted that the tenants owe the landlord over  Kshs.600,000/- in rent arrears having only paid Kshs.40,000/- since October 2018.

27.   The issue of purported sale of the carwash business is not borne out of the documents I had on the court’s record at the time of writing this ruling.  I shall not therefore make comments on the allegation.

28.  Having analysed the evidence presented before me, I find and hold that the applicants have not been able to demonstrate that they have paid rent up to date to warrant protection by way of a temporary injunction against the landlord.

29.  In the premises, I am not persuaded that the applicants have brought themselves within the principles espoused in the case of Giella  - vs- Cassman Brown & Co. Ltd (1973) EA 358.

30.   I also find that the notice to vacate issued by the landlord is null and void as it offends section 4 of Cap. 301 Laws of Kenya and cannot therefore be a basis for eviction of the tenants.  In this regard, I wish to rely on the decision in the case of Fredrick Mutua Mulinge t/a Kitui Uniform – vs- Kitui Teachers Housing cooperative Society Limited (2017) eKLR where it was held as follows at page 4/6:-

“For a notice seeking termination or variation of a controlled tenancy, section 4(4) of the Act requires the same to be not less than two months unless parties agree in writing to a lesser notice period”.

31.  Citing the case of Ann Mwaura & 9 others – vs- David Wagatura Gitau & 2 others (2010) Eklr, the court stated as follows:-

“As regards  the period of notice, I concur with the Court of Appeal holding in the said case of Caledoni a supermarket Ltd – vs- Kenya National examinations  council (2002) 2 EA 357 that…..”failure to comply with those mandatory requirements rendered the purported notice (s) null and  void and incapable of enforcement”.

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

(a) The tenant’s application dated 20th April 2021 is dismissed.

(b) The interim orders given on 21st April 2021 are hereby discharged and/or vacated forthwith.

(c) The landlord’s notice to vacate dated 18th March 2021 is declared null and void and as such incapable of enforcement.

(d) The landlord shall be at liberty to recover the rent due and owing by the tenants by use of lawful means without further recourse to this Tribunal.

(e) Each party shall bear own costs.

(f) The reference dated 20th April 2021 is hereby marked as spent in view of this ruling and this file is ordered closed.

DATED, SIGNED & DELIVERED THIS 14TH DAY OF OCTOBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

IN THE PRESENCE OF:-

MR. NGUGI FOR TENANT/APPLICANT

KANYUIRA FOR THE LANDLORD/RESPONDENT