Judy Muthoni Njoroge v Mary Wanjiru Irungu [2022] KEBPRT 17 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 149 OF 2021 (NAIROBI)

JUDY MUTHONI NJOROGE..............................................................................................TENANT

VERSUS

MARY WANJIRU IRUNGU...........................................................................................LANDLORD

JUDGEMENT

1.   The Landlord in this matter served the Tenant with a notice to terminate/alter terms of tenancy dated 13th January 2021.  The grounds on which the termination of the tenancy is sought are stated as follows;

a.   Unauthorized change of business from a hotel to a wines and spirit.

b.   Escalated rent default despite several verbal demands.

2.   The Tenant did not agree with the notice to terminate her tenancy and filed her reference dated 9th February 2021.

3.   This matter came up for hearing on 16th December 2021.  The Tenant was represented by Miss Wagwa and the Landlord was represented by Mr Wainaina when the matter was called out for hearing during the callover.  After the matter was called out for hearing later at 11. 22 a.m, Mr Wainaina and his client were absent.  The Tribunal then ordered that the matter does proceed in the absence of the counsel for the Landlord and the Landlord.

4.   The Tenant’s evidence in opposing the Landlord’s notice to terminate her tenancy may be summarized as follows;

a.   That she is in the business of wines and spirits as a wholesaler.

b.   That she was served with a notice of terminating her tenancy for reasons that she had changed her business to one of wines spirits and further that she had defaulted in payment of rent.

c.   That her rent payment is up to date.

d.   That the Tenant has changed businesses severally from a shop, butchery, milk bar and now the wines and spirit shop.

e.   That the Tenant never required the permission of the Respondent to changer her business.

f.    That the agreement annexed to the Respondent’s affidavit is fake and the Tenant never signed the same.

g.   That the Tenant has business permits and licences for the premises.

h.   That the business is a wholesale business and no people take alcohol from the premises.

i.    That the Tenant is not a nuisance to other Tenants.

5.   The evidence of the Tenant in opposing the notice to terminate the tenancy is not challenged in any way by the Respondent.  The Respondent did not tender any evidence during the hearing.  on the first ground for termination of tenancy given by the Respondent, the Tenant has stated that she has changed her business severally, from a shop to a butchery to a milk bar and now to a wines and spirits shop.  The Tenant has stated that she did not require the permission of the Respondent to change the nature of her business.  She has further denied the agreement the Respondent sought to rely on in her replying affidavit.

6.   The Respondent did not attend the hearing to counter these statements by the Tenant.

7.   In these circumstances, I do agree with the Tenant that she was not required to obtain any permission from the Respondent to changer her business to a wines and spirits wholesale shop.

8.   In the second ground relied upon by the Respondent to terminate the tenancy, I do find that the Landlord has not demonstrated that the Tenant is a persistent rent defaulter.  The Tenant’s unchallenged evidence is that she is up to date with her rent payments.

9.   The upshot of this is that there is no evidence to support the notice of termination of the Applicant’s tenancy.  Consequently, I do order under section 9(1)(b) of Cap 301 of the Laws of Kenya that the Landlord’s notice to terminate tenancy dated 13th January 2021 shall be of no effect.

10. The Tenant’s reference dated 9th February 2021 is allowed with costs to the Tenant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Judgement dated, signed and delivered virtually by Hon P. May (Vice Chair)this17th February, 2022in the presence of Waigwafor theTenant/Applicantand in the absence of theLandlord.

HON. P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL