Joseph Mugenda Kuria v Robinson Njau Kariuki t/a Sunrise Woodwork [2021] KEBPRT 179 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 716 OF 2019 (NAIROBI)

JOSEPH MUGENDA KURIA...........LANDLORD/APPLICANT

VERSUS

ROBINSON NJAU KARIUKI T/A

SUNRISE WOODWORK.......................TENANT/RESPONDENT

JUDGEMENT

1.   The Landlord’s “reference” to the Tribunal brought under section 12(4) of Cap 301 is in the following terms;

“The Respondent/Tenant has unlawfully carried out alterations of the suit premises by demolishing part of the wall without the consent of the Landlord contrary the provisions of Cap 301 of the Laws of Kenya.”

2.   The Landlord prayed that this Tribunal intervenes and he be given the necessary court orders.  This matter came up for the hearing of the reference on 23rd August 2021.

3.   The Landlord’s Case;

Mr Joseph Mugenda Kuria’s evidence may be summarized as follows;

a.   That the dispute herein concerns land reference number 36/1/5 Eastleigh section 1, Nairobi City and the same belongs to the Landlord as per the conveyance produced as LLEX 1.

b.   That there are other Tenants on the suit premises and the Tenant herein occupies shop No 1 on the ground floor.

c.   That the 1st and 2nd floor has residential premises while the ground floor has business premises.

d.   That the Tenant pays Kshs 12,000 per month and the Landlord has no problems with the Tenant’s rent payment.

e.   That the Tenant’s premises has two rooms, one of them is a store and there is an interconnecting room inside.

f.    That the premises has two doors.  The second door was not there originally.  it was fixed by the Tenant in the space where there used to be a window.

g.   That the Tenant destroyed the interior wall and the room now appears as one.

h.   That the Tenant is also displaying beds outside and obstructing other Tenants.  There is also a lot of dust emanating from the woodwork machines.

i.    That the Tenant has not complied with the Tribunal orders issued on 22nd October 2019requiring him to carry out his operations from inside the suit premises.

j.    That other Tenants are complaining about the obstruction caused by the Tenant’s display of his stocks.

k.   That the City Council has also complained about some renovations to be done on the premises.

l.    That the City Council has even charged the Tenant, the charge sheet was produced as exhibit LL6.

m.  That the Landlord now wants the Tenant out to enable him to do renovations.

4.   Upon cross-examination by counsel for the Tenant, the Landlord stated as follows;

a.   That he came into possession of the property around the year 2000.

b.   That he is the one who constructed the property even while it was in his mother’s name.

c.   That he has no evidence that he was involved in the construction.

d.   That he was registered as the owner of the suit property in 2010.

e.   That he has no evidence that he managed the property prior to 2010.

f.    That he does not remember when the Tenant leased the demised premises but the Tenant was there before the year 2010.

g.   That he does not have the original plans of the building to show how the same looked like before the Tenant committed the alleged acts of waste upon it.

h.   That he does not know when the alterations were done.

i.    That he has no evidence to show that he was receiving the rent prior to 2010.

j.    That his only complaint is the illegal alterations done on the premises.

k.   That the charge sheet from the City council does not bear the stamp of the Nairobi City Council.

l.    That of the photographs produced as exhibits, it is not possible to tell when they were taken, they do not bear any date stamps.

m.  That the Landlord has not called any Tenants to confirm if any Tenant has been complaining against the Tenant herein.

n.   That he has no photographs showing the machines outside the demised premises since the orders of 22nd October 2019 were issued.

5.   On Re-examination by Mrs Wambua, the Landlord stated;

a.   That he filed this case in 2019.

b.   That his complaint refers to alterations of the walls and the window outside.

c.   That the Tenant did not carry out the repairs demanded in the charge sheet.

d.   That his mother did not permit the Tenant to carry out the alterations.

6.   The Tenant’s Case;

Mr Robinson Njau’s, evidence may be summarized as follows;

a.  That he adopts the affidavits sworn by himself on 29th August 2019 and 18th September 2019 as his evidence.

b. That the Tenant took up the premises in the year 2000.  The Landlord herein came in after the death of his mother who was the Tenant’s Landlord.

c.  That he has not altered the premises.  The only alteration was a door he put at the back of the premises.  The modification was done in the year 2000.

d.  That since the court orders were served upon him, his machines have been inside his premises.

e.  That the charges allegedly emanating from the City Council are fake.  The Tenant has never been taken to any court.

f.   That other than the door, the Tenant has not altered any other part of the building.  The Tenant found the external doors as they were.

7.   Upon cross-examination by counsel for the Landlord, the Tenant stated as follows;

a.  That he partitioned the room with plywood, he did not seek permission to do the partition as the same is temporary.  One side of the partition is the work area, the other one is the display area.

b.  That he took the premises as it is and has not interfered with the external doors.

c.  That the Tenant had the permission to upgrade the power connection to a 3 phase connection at a cost of Kshs 200,000/-.  It is KPLC which approves the connections.

d.  That the Tenant has no problem with the other Tenants.

e.  That he has not been taken before any court.  City hall confirmed to the Tenant that no case had been filed against him and advised him to report the matter which he did at Pangani Police Station.

f.   That he only concedes to the fitting of the wooden partition and he did not demolish any wall to create the office.

8.  On re-examination by his counsel, the Tenant stated as follows;

a.  The Landlady was aware of the plywood partition, she never complained.

b.  The front doors were as they are when the Tenant took over the premises.

c.  That the Tenant has not blocked the road, and in any event, that is a matter best dealt with by the City Council.

9.   At the close of their respective cases, the parties intimated to the Tribunal that they were not filing any submissions and requested the Tribunal to render judgement on the basis of the evidence tendered by the parties.

10. Having summed up the evidence of the parties, the issues for determination, in my humble view are the following;

a. Whether the Tenant altered the building (suit premises) by demolishing the interior wall to create one room where there were two rooms before without the consent of the Landlord.

b.  Whether the Tenant altered the external walls of the suit premises to create a door from where the window was initially.

c.  Whether the Tenant’s activities are interfering with the other Tenants’ peaceful occupation of the suit premises.

d.  What orders ought to be issued in disposing of the reference by the Tenant dated 31st July 2019?

11. On issue (a) and (b);

a.   It is the evidence of the Landlord that the premises currently has two doors and that the second door was initially not there.  What was in its place was a window.  The Landlord’s case is that the Tenant created this door without the authority of the Landlord.  it is also the evidence of the Landlord that the Tenant demolished an interior wall and created one room where there initially were two rooms.

b.   The Tenant has resisted these allegations.  He is emphatic that the only alteration he has done upon the premises is a back door allowing him to access sanitary facilities at the back of the room and a plywood partition separating his work area and the display area for the finished products. The Tenant has stated that he initially dealt with the Landlord’s mother and one Mr Mwangi.  The adjustments made by the Tenant were made before the Applicant herein became the Landlord.

c.   The following facts are evident from the answers given by the Landlord when he was cross-examined by counsel for the Tenant;

i. That the Landlord was registered as the proprietor of the suit property in 2010.

ii.  That the Tenant was on the suit premises prior to 2010.

iii.  That he does not have plans showing the state of the suit premises before the alleged alterations, and neither does he know when the alterations were done.

d.   It is therefore clear from the foregoing, that if the Landlord herein became registered as the proprietor of the suit premises in 2010,the only time the Tenant would have sought the consent of the Landlord to alter any part of the demised premises is 2010 onwards.  The Tenant is not clear on when the alterations he complains of were effected, indeed his response to that particular question was that he did not know.

e.   The Tenant has stated that he fixed the door and the plywood partition long before the Landlord herein became his Landlord.  The Landlord has stated under cross-examination that he took possession of the suit premises in the year 2000, even though he states that he has no evidence that he managed the property prior to 2010neither does he remember when the Tenant took over the premises.

f.    The question that begs at this juncture and in view of the Landlord’s response then is; where and what was the Landlord doing about the alterations on the suit premises between the year 2000, 2010 and 2019when he filed his reference at the Tribunal?  I have found no explanation of this inertia on the part of the Tenant in the proceedings herein.

g.   The denial by the Tenant as to the destruction of the interior walls and the exterior wall has not been shaken by the evidence of the Landlord.  there is no demonstrated objection by the Landlord’s deceased mother to the temporary partition of the premises by the Tenant.  The Landlord’s deceased mother who was the Tenant’s initial Landlord also never complained of the alleged alterations by the Tenant.

h.  The Tenant’s evidence that he took the premises as it is save for the admitted alterations is plausible and believable in the circumstances of this case.  I have not seen any evidence to suggest that the Tenant created a door from the position of the external window and/or evidence showing that any interior wall was demolished.

i.  On these two issues, I therefore do find that the Landlord has not proved that the Tenant carried out any external and internal alterations save for the plywood partition and the door leading to the alternative sanitary facility at the back of the room.

j.   The Tenant’s upgrading of the electricity connection is not shown to have been illegal and requiring the consent of the Landlord.  the Tenant has indicated that he met the costs for the same and I believe it was in line with the requirements of his business.  As to the door leading to the sanitary facility at the back of the suit premises, I note that the Landlord has not raised any objection to the same.

12. On issue (c)

a. The Landlord’s case is that the Tenant has blocked other Tenants by placing beds outside the suit premises.  The Landlord further stated that the Tenants and the City Council have complained against the Tenant’s operations.  The Tenant’s answer to this assertion was that he had no problems with any of the Tenants and the complaints alleged to have emanated from the City Council were fake.  No charges were ever preferred against him.

b. The landlord did not call any witness to confirm that indeed there were complaints from the Tenants.  If this were so, nothing would have been easier than for the Landlord to call to his aid any other of the Tenants who were aggrieved by the activities of the Tenant/Applicant.  In the absence of any evidence of this nature, I do find that the Landlord has not proved that the Tenants or any other of them in the suit premises has been blocked by the Tenant in the free use of their demised premises.

13. In conclusion, I therefore do find that the Landlord’s reference dated 31st July 2019has no merits and the same is dismissed with costs to the Tenant.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Judgement dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this 19th day of October, 2021 in the presence of Ms Kimaniholding brief forMs Wambuafor theLandlordand in the absence of theTenant.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL