Kimari v Muchai [2024] KEBPRT 378 (KLR)

Kimari v Muchai (Tribunal Case 23 of 2021) [2024] KEBPRT 378 (KLR) (Civ) (29 February 2024) (Judgment)

Neutral citation: [2024] KEBPRT 378 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 23 of 2021

N Wahome, Member

February 29, 2024

Between

Nicholas Kihungi Kimari

Tenant

and

Johnson Karina Muchai

Landlord

Judgment

1. The reference herein and dated 26/2/2021 was triggered by the Landlords notice to termination tenancy dated 25th January 2021. The effective date of the termination was stated to be the 1/4/2021. The landlord had prescribed two (2) grounds that informed the issuance of the Notice as follows,i.Landlord and family intend to take over the leased premises for personal use, andii.Non- payment of monthly rents.

2. In response to the notice, the Tenant through his Advocate Mr. Mindo by a letter dated 25/2/2021 responded to the following effect”,“Our client does not agree to comply with the notice. He will file the necessary reference in due cause”.Indeed the reference was also filed on the same date of the letter aforesaid and it sought that:-“I therefore request the tribunal to investigate the matter and determine the issues involved”.

3. Further to the above, the Tenant filed a list of witnesses and witness statement dated 21/11/2023 and a list of documents and documents of even date. On his part, the landlord over and above the termination notice dated 25/1/2021 also filed a Replying Affidavit to the reference which was sworn on the 24/3/2021 and further file a supplementary affidavit sworn on the 11/10/2023.

4. On the 1/12/2023, the parties with the concurrence of the court agreed to canvas the reference by way of written submissions. The applicant’s submissions are dated 5/12/2023 whereas those for the respondent are dated 14/12/2023.

5. The case for the Tenant is that he has always met his rental obligations and that the respondent had no good cause nor justification to terminate the Tenancy. He insisted that the respondent remained his landlord despite the proceedings in Muranga High Court in succession cause No. 116 of 2014 as he still paid rent to him.

6. The landlord’s case was that the Tenant was a rent defaulter and that him and family needed use of the premises. He asserted that there were new development in this matter as Muranga High court in Succession Cause No. 116 of 2014 divested the subject property namely Loc.19/Gacharageini/4 Mioro from the respondent. The relationship between the parties herein therefore ceased to exist. He sought that the reference be dismissed and the notice of termination be upheld.

7. I have perused and given due regard to all the materials placed before me including the parties respective submissions and am of the view that the issues for determination in this matter are the following:-A.Whether the notice of termination of Tenancy dated 25/1/2021 was lawful.B.Who should bear the cost of this suit.

Issue No. A whether the notice of Termination of the Tenancy dated 25/1/2021 was lawful. 8. It is apparent that at face value, the said notice of termination is compliant in terms of form as prescribed under Section 4(2) of the Act and Regulation 4(1) of the Regulations thereof however of eritical importance also is proof of the grounds cited for such termination. The respondent had cited the same as:-i.Landlord and family intend to takeover the leased premises for personal use, andii.None payment of monthly rents.

9. For the first ground to be deemed effective there must be strict compliance with Section 7(1)(g) of the Act. The same provides the following:-“Subject as herein after provided, that on the termination of the tenancy the landlord himself intends to occupy for a period of not less than one (1) year the premises comprised in the tenancy for the purposes, or partly for the purposes of a business to be carried by him therein or at his residence”.

10. The landlord has not indicated for how long he intended to occupy the premises. The law is clear that it must be for a period of not less than one year. It is also not stated what business was intended to be set up and what preparations the respondent had put in place for such Business. There must be very clear intent supported by clear content in terms of evidence for this ground on the termination notice to prevail.

11. From the respondents own averments through the further affidavit sworn on the 11/10/2023 and his submissions dated 14/12/2023 it is clear that any rights he had over the suit premises as comprised in Title No. Loc.19/Gacharageini/4 Mioro were ousted by the confirmation of Grant in relation to the Estate of the late Nahashon Muchai Karina in Muranga High Court Succession Cause No. 116 of 2014.

12. It therefore follows that the previous intention to occupy the demised premises was defeated by effluxion or time and that ground is no longer available to him. For clarity, the law requires that the intention to occupy the demised premises must be by the landlord himself and not any third parties including his family as stated in the impugned notice.

13. The second limb of the termination notice was none payments of monthly rents”. Section 7 (1) b of the Act provides that another ground available to a landlord wishing to terminate a tenancy is:-“That the tenant has defaulted in paying rent for a period of two (2) months after such rent has become due or payable or has persistently delayed in paying rent which has become due or payable”.

14. The respondent has not in his notice indicated as to how much the Applicant owed in rent arrears, for which months or even seek for the levy of distress for such arrears of rent if at all they were a reality.it is apparent that the respondent never employed the slightest effort to show that the Applicant owed him any such rent arrears.

15. Section 107 of the Evidence Act provides that:-“whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.I determine that the respondent failed to prove that the Applicant was in any rent arrears and that ground to terminate the tenancy herein was therefore also not available to him.

16. The total effect of that is that the notice of termination of tenancy dated 25/1/2021 was unlawful and of no effect nor consequence.

ISSUE NO. B- Who should Bear the Costs of this Suit. 17. Am alive to the provisions of Section 27 of the Civil Procedure Act and also appreciate the proviso thereof. However looking at the totality of this matter and the circumstances leading to the resolution of the same, I find that the justice of this case dictates that each party do bear own costs.

18. In the final analysis I make the following orders:-i.That the notice of termination of tenancy dated 25/1/2021 is declared unlawful and therefore of no legal effect nor consequence.ii.That each party will bear own costs of this case.

19. Those are the orders of the court.

RULING DATED, SIGNED AND DEVELIVERED VIRTUALLY AT KAKAMEGA THIS 29TH DAY OF FEBRUARY, 2024. HON. NDEGWA WAHOME - MEMBERBUSINESS PREMISES RENT TRIBUNALJudgement delivered in the presence of Mr. Mwangi holding brief for Mr. Kirubi for the Landlord, Mr. Mindo for the Tenant absent.HON. NDEGWA WAHOME - MEMBERBUSINESS PREMISES RENT TRIBUNAL