Joseph Macharia Makanga v Raphael Muchembe Wangari [2022] KEBPRT 664 (KLR)

Joseph Macharia Makanga v Raphael Muchembe Wangari (Tribunal Case E011 of 2022) [2022] KEBPRT 664 (KLR) (Civ) (20 July 2022) (Ruling)

Neutral citation: [2022] KEBPRT 664 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E011 of 2022

Gakuhi Chege, Vice Chair

July 20, 2022

Between

Joseph Macharia Makanga

Applicant

and

Raphael Muchembe Wangari

Respondent

Ruling

1. The issue before me is whether the landlord is entitled to recover vacant possession of the suit premises situate on plot no 056/80, Othaya Township from the tenant.

2. The landlord served a notice of termination of tenancy dated November 1, 2021 citing persistent failure by the tenant to pay monthly rent of kshs 7000/- for a period of over six (6) months amounting to kshs 42,000/-. The notice was expressed to take effect on February 1, 2022.

3. The landlord moved this tribunal vide a motion dated February 9, 2022 seeking for recovery of kshs 85,000/- in rent arrears with immediate effect. He further seeks for eviction of the tenant for failure to pay rent in order to gain vacant possession.

4. The landlord alludes to a reference filed by the tenant without disclosing the case details and the tenant in response did not file any evidence of existence of such a reference. The application is supported by an affidavit sworn on February 9, 2022 by the landlord.

5. According to the landlord, the tenant fell into arrears of rent in May 2021 to December 2021 at a rate of kshs 7000/- for one of the rooms. He also failed to pay rent for the months of January and February 2022 for both rooms all totaling to kshs85,000/- as at January 2022.

6. In response to the application, the tenant filed a replying affidavit stating that he has always and diligently paid rent to the landlord. He paid full year rent for room A and rent for room B for the months of January- April 2021. He was unable to pay rent for room B on account of financial constraints due to Covid-19 pandemic.

7. He paid rent for the month of May 2021 for room B. However the said room was closed by the landlord on account of a disagreement between him and a tenant who was using the kitchen and had put a fence in a way to deny the respondent access to the kitchen. As a result, the respondent could not operate room A which is a butchery without the kitchen. As such the tenant claims not to have used the kitchen since June 2021.

8. According to the tenant, he informed the landlord not to renew his lease for room A for the year 2022 since he was unable to commit and meet his demands. The tenant deposes that he went to pick his properties but was blocked from accessing the premises as the butchery entry was closed.

9. According to the tenant, he had spent about kshs 500,000/- to improve the suit premises inclusive of tools and equipment for business. He admits that he has not paid rent for room A since January 2022 and that room B was closed in June 2021.

10. The landlord filed a further affidavit sworn on May 5, 2022 denying the depositions made by the tenant that he closed room B and erected a fence. He also denies any notice that the tenant would vacate from the suit premises or that he effected improvements thereof.

11. According to the landlord, the tenant closed the premises and went away and efforts to trace him were fruitless. The tenant is said not to have complained in this tribunal when the alleged closure took place. He has not exhibited receipts of expenses for improvements allegedly made in the suit premises.

12. The application was directed to be canvassed through written submissions and both counsels complied.

13. The issues for determination are:-a.Whether the landlord is entitled to vacant possession of the suit premises.b.Whether the tenant is indebted to the landlord in rent arrears.c.Whether the tenant is entitled to take his properties from the suit premises.d.Who is liable to pay costs?

14. It would appear from the contents of paragraphs 13 and 16 that the tenant did not desire to continue in occupation of the suit premises. I have noted from the tenancy agreement marked ‘JMM1’ that the parties agreed on one (1) room lease for a period of 5 years from February 7, 2020 to February 6, 2025. Clause 19 of the agreement provides as follows:- “ If the tenant is desirous of terminating this tenancy before the expiry of the tenancy, he shall give the landlord three (3) months notice in writing and if the landlord is desirous of terminating the tenancy for breach of any terms in this agreement, he shall give the tenant three (3) months notice in writing”.

15. I have not seen any notice by the tenant seeking to terminate the tenancy in terms of clause 19 of the agreement. I therefore find and hold that this Tribunal cannot find that there was termination of tenancy other than in the manner contemplated by the two parties. It cannot be inferred from the evidence before the tribunal (see Jiwaji & Others – vs- Jiwaji & Another (1968) EA 547 at page 554).

16. I therefore find that the tenant has not demonstrated that he terminated the tenancy in respect of room A. I have also not seen any evidence that the landlord closed the kitchen room known as room B. The tenant could have complained to the tribunal and there being no such complaint, I find that he is liable to pay the rent claimed by the landlord.

17. Although the landlord claims that there is a pending reference over the termination of the tenancy no evidence was adduced by either party to prove the same. I therefore find that the notice to terminate tenancy took effect on February 1, 2022 under section 10 of cap 301 and the tenant is liable to be evicted therefrom.

18. As regards whether the tenant is entitled to take away his properties from the suit premises, my answer is in the affirmative. The landlord shall allow him to do so subject to payment of the rent arrears upto date of delivery of vacant possession.

19. Finally on the issue of costs, the same are in the court’s discretion but always follow the event. I have no reasons to deny the landlord costs.

20. In the final conclusion of this matter, I make the following orders:-i.The landlord’s notice to terminate tenancy dated November 1, 2021 is hereby upheld.ii.The tenant shall surrender immediate vacant possession of the suit premises situate on L R no 056/80, Othaya Township and indefault shall be evicted therefrom by a licensed auctioneer who shall be provided with security by the OCS Othaya police station.iii.The tenant shall clear the rent arrears owing to the landlord whereupon he shall be given back his properties within the suit premises failing which the same shall be sold for purposes of defraying the rent arrears after expiry of thirty (30) days hereof.iv.The tenant shall pay costs of kshs 25,000/- for this case to the landlord.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF JULY 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Nyakio for the landlord/applicantAbuya for the tenant/respondent