Kiburu & 6 others v Mepukori [2022] KEBPRT 871 (KLR)

Kiburu & 6 others v Mepukori (Tribunal Case 317, 446, E332, E333 & E334 of 2021 (Consolidated)) [2022] KEBPRT 871 (KLR) (Civ) (22 December 2022) (Judgment)

Neutral citation: [2022] KEBPRT 871 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 317, 446, E332, E333 & E334 of 2021 (Consolidated)

Andrew Muma, Vice Chair

December 22, 2022

Between

Felix Waweru Kiburu

1st Tenant

Irene Wanjiku

2nd Tenant

Mohammed Salim

3rd Tenant

Meshack Ogado

4th Tenant

Benard Mundia

5th Tenant

Naomi Mutuku

6th Tenant

Caroline Muthoni Ngure

7th Tenant

and

Moses Kiarie Mepukori

Landlord

Judgment

A. Parties And Their Representatives 1. The 1st tenant/ applicant occupies a portion (approximately ¼ acres) of the suit premises, parcel number Ngong/Ngong/51593 (hereinafter the “suit premises”).

2. The 2nd -7th tenants /applicants are sublessees of the 1st tenant/ applicant on the suit premises.

3. The firm of Mwaura Kamau & Co Advocates represents the 1st, 2nd, 4th and 6th tenants /applicants in this matter (Email Address: mwaurakamauadvocates@gmail.com).

4. The firm of Wangui Nkirote & Partners Advocates represent the 3rd tenant/respondent in this matter (Email Address: wanguinkirote@gmail.com).

5. The landlord/respondent is the registered owner of the suit premises.

6. The firm of KMK Law LLP Advocates represent the landlord/respondent in this matter.

B. The Dispute Background 7. The landlord entered into a tenancy relationship with the 1st applicant. The 1st applicant sublet the premises to the 2nd to 7th tenants /applicants. The landlord issued a two months’ notice to vacate the premises dated May 10, 2021. The tenants failed to comply with the notice resulting to the filing of the instant suit.

8. The landlord submitted that on June 1, 2012, he entered into an oral lease with the 1st tenant for a period of 5 years over parcel number Ngong/Ngong/51593 at a monthly rent of Kshs 10,000. 00 in the first year and Kshs 12,000. 00 in the subsequent years. The said lease expired on June 1, 2017 and the 1st tenant/ applicant and his sub-leases continue to occupy the suit premises even after they served with notices to vacate and the tenant continues to pay Kshs 12,000. 00 to date.

9. The 1st applicant submitted that the landlord has not shown proof of tenancy relationship since he has not annexed any agreement to that respect. He contends that proof of oral lease would require viva voce evidence. Further the 1st, 2nd, 4th and 6th applicants have been in occupation of the suit premises since the year 2012 and have been paying rent, a fact not disputed by the landlord. They further submit that having been in occupation for nine years, they have established their clientele and their eviction would cause them huge losses. The 3rd applicant on the other hand submitted that he has no relationship with the landlord/applicant since he has been paying rent to the 1st respondent who has been serving as his landlord. The 3rd applicant further submitted this honourable tribunal lacks jurisdiction since there is no established tenancy relationship between the landlord and the tenants .

C. The Tenants /Applicants’ claim 10. The 1st applicant filed a reference dated July 19, 2021.

11. The 3rd applicant filed a replying affidavit dated November 19, 2021.

12. The 3rd applicant filed written submissions dated November 4, 2021.

13. The 1st, 2nd, 4th and 6th applicants filed written submissions dated September 19, 2022.

14. On March 31, 2022, this tribunal delivered a ruling, ordering inter alia, that the landlord and 1st tenant file rent valuation reports within 30 days from the date of the ruling. No such valuations have been filed instead a notice of motion application dated April 12, 2022 under certificate of urgency of even date, seeking that this tribunal varies and/or sets aside the orders made on March 31, 2022 was filed by the landlord which was to be heard together with the full reference.

15. The matter was fixed for hearing on November 24, 2022.

D. The Landlord’s Claim 16. The landlord filed submissions dated August 19, 2022.

E. Issues For Determination 17. The issue raised for determination before this tribunal is whether the orders issued by the tribunal concerning rent valuation of the suit premises should be vacated and whether the notice to terminate tenancy should take effect.

F. Analysis And Determination 18. At the outset, I refer to section 12(1)(i) of the Landlord And Tenant (Shops, Hotels And Catering Establishments) Act which states as follows:A tribunal shall, in relation to its area of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of this act, and in addition to and without prejudice to the generality of the foregoing shall have power—to vary or rescind any order made by the Tribunal under the provisions of this act.

19. In the present matter, the 1st tenant filed an application dated April 12, 2022 praying that the tribunal vacate its orders issued on March 31, 2022. He claimed inter alia, that the tribunal’s order concerning rent valuation on the property could only affect the land and not the stalls put up thereon. He averred that he put up the aforesaid stalls and not the landlord.

20. Further, the 1st tenant asserted that the lease agreement between himself and the landlord was in respect of an empty parcel of land thus it cannot be purported that the landlord-tenant relationship extends to the structures built upon the suit premises.

21. This tribunal maintains that valuation ought to be conducted in respect of both the parcel of land and the structures (stalls) set up thereon given that the stalls form part of the suit premises. The tenant cannot purport to cherry-pick which property ought to be valued as the stalls are erected on the suit premises, all of which fall under the controlled tenancy in question.

22. In view of the foregoing, this tribunal is not convinced that it ought to exercise its powers to vary its previous orders as prayed. Parties having elected to proceed to full reference this valuation exercise appears overtaken by events in the circumstances.

23. However, the references are for eviction since the landlord is desirous of carrying out construction on the said parcel of land and the tribunal reiterates the findings in paragraph 17 of its earlier ruling dated March 31, 2022. No evidence has been brought before this tribunal to warrant the grant of the termination orders.

G. ORDERS 24. This tribunal makes the following orders. The upshot is that:a.The 1st tenant’s reference dated July 19, 2021 is hereby allowed;b.tenants to continue paying rent as agreed;c.landlord at liberty to issue fresh notices as and when sufficient reasons supported by evidence.

HON A MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALJudgment dated, signed and delivered virtually by Hon A Muma This 22nd Day Of December 2022 in the presence of Kamau For The 1st, 2nd, & 6th tenants and in the absence of the landlord.HON A MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL