Milkah Billah v Festus Kasuku Achila [2019] KEBPRT 6 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. 85 OF 2018 (KISUMU)

MILKAH BILLAH……………………………………………..TENANT

VERSUS

FESTUS KASUKU ACHILA……………………………...LANDLORD

JUDGEMENT

The Landlord/Respondent in the above reference by a notice dated 18th October 2018 sought to terminate the tenancy of the Tenant/Applicant with effect from 1st January 2019.  The Tribunal shall revisit and evaluate the ground of termination of tenancy later in the judgment.

The Tenant did not wish to comply with the Landlord’s notice and filed the reference in the Tribunal under section 6 of Cap 301.  The parties to the reference have given evidence before the Tribunal.

The mandate of the Tribunal is now to evaluate the evidence on record and all exhibits and make a determination of the reference taking into account the relevant provisions of Cap 301.

Summary of the Landlord’s Case

The Landlord Festus Kasuku Achila testified as hereunder.

That he is a businessman at Kisumu.  That he is the deponent of the affidavit sworn on 19th February 2019 in support of the notice.  That he adopted the affidavit and all the annexetures thereto as part of his evidence before the Tribunal.

That he knows the Tenant in the reference.  That he served the Tenant with the notice dated 18th October 2018.  That he wishes to expand his business in the suit premises.  That he had seen the replying affidavit of the Tenant and in particular paragraph 3.  That he is also a Tenant in the premises.  That he had shown the Tenant the lease between him and the Landlord.  That she was aware that he was not allowed to sublet the premises.  The lease agreement is attached to the Landlord’s supporting affidavit.  The Landlord in May 2019 warned him about subletting.  That there was another case BPRT 35/2018.  That he has now served the Tenant with a notice in the prescribed form which is the subject matter of the reference.  That there was BPRT 43/2018.  That he prayed that the Tribunal do allow his notice and orders the Tenant to vacate the premises.

The Tenant was cross-examined by S.M. Onyango for the Tenant and made the following further statements:

That he wants to expand his business.  That the Landlord in May 2018 complained about subletting of the premises.  That the agreement between him and the Landlord is still in force.  That he is aware that he is not supposed to sublet the premises without written consent from the Landlord.

That according to him, the agreement between him and the Tenant is null and void ab initio.  That he is a Head/Tenant.  That the agreement between him and the Tenant is illegal.  That the Tribunal determines that the Tenant is a protected Tenant.  Upon re-examination by Mr Ashura, he confirmed that the Tenant pays a monthly rent of shs 20,000/-.

Summary of the Tenant’s case

The Tenant Milka Bilha testified as hereunder;

That she stays at Nyamasaria.  That she is a business woman.  That she has a business along Oginda Odinga Street.  That she is the deponent of the replying affidavit sworn on 19th February 2019.  That she adopted the replying affidavit and all the annexture thereto as part of her evidence before the Tribunal.

That she had heard the evidence of the Landlord.  That the Landlord (Head Tenant) did not show her the agreement between him and the owner of the said premises (Landlord).

That she signed the lease agreement on1st March 2016. That she pays rent to the Landlord/Respondent in this reference.  That she did not know that he was also a Tenant.  That she saw the agreement between the Landlord in the reference and the owner of the premises in court.  That there are other Tenants in the premises.  One of them was Violet.  She is still in the premises.  That she was aware that Violet had also been served with the notice to vacate the premises.  That she pays the rent as per the agreement.  That she started paying rent on 1st July 2017.  That she was a party to Tribunal case number 35/2018.  That the Respondent in BPRT 35/2018 stated that the Tribunal has no jurisdiction.  She prayed that the Landlord’s notices be dismissed with costs.

The Tenant was cross-examined by Mr Ashura for the Landlord and made the following statements:

That she has a Tenancy agreement for the period of 2 years.  The agreement for a period of 2 years.  The agreement was drawn by the Landlord (Festus).  That she is aware that Violet has also been served with a notice to terminate the tenancy.

Evaluation of the Evidence

The Landlord/Respondent in the reference seeks to terminate the Tenancy of the Tenant on the following grounds;

“That I would like to occupy the premises for my own use for a period of not less than one year.”

The above ground of termination of tenancy is provided for under section 7(1) of Cap 301.

The following facts are not in dispute in the matter;

1.   The Tenant/Applicant herein is a sub-Tenant of the Head/Tenant/Respondent in the reference pursuant to a tenancy agreement exhibit FKA 1 in the Landlord’s supporting affidavit filed in the Tribunal on 20th February 2019 which was for a period of 2 years renewable.

2.   The agreement between the Tenant and the Landlord in the reference was as pointed out earlier for a period of 2 years which created a controlled tenancy under section 2 of Cap 301.

3.   The parties before the Tribunal are Landlord and Tenant and the reference is properly before the Tribunal and the Tribunal has jurisdiction to hear and determine the dispute.

4. The Landlord in the reference has a lease agreement with the owner of the suit premises exhibit MB 2 in the replying affidavit of Tenant filed on 19th February 2019.

5.   The owner of the suit premises is not a party to the reference and the issue as to whether the Landlord herein is allowed to sublet the premises or not is not material to the reference before the Tribunal.

6.   The lease between the Landlord and the Tenant was for a period of 2 years and was renewable.

The lease commenced on 1st August 2017 and the first 2 years will come to an end on 1st July 2019.

The Tenant paid a goodwill of shs 80,000.  The Tribunal upon consideration of all the evidence on record is satisfied that the Landlord has demonstrated a genuine desire to use the premises.  The Landlord does not also want to offend the main Landlord/Owner of the suit premises who has raised issues of subletting of the premises.

The Landlord in his evidence and his demeanour before the Tribunal demonstrates that he has a genuine desire to use the premises.  This dispute has also been the subject matter of other Tribunal cases and it is in the interest of justice that the parties do disengage.  The Tenant paid a goodwill of shs 80,000/-.  The lease was renewable.  She has been in the premises for 2 years only and she will be entitled to a refund of 50% of the goodwill.  The Tribunal is satisfied that the Landlord in the reference has proved his notice on a balance of probabilities and makes the following orders;

1.   The Tenant’s reference dated 19th November 2018 is dismissed.

2.   The Landlord’s notice dated 18th October 2018 is allowed.

3.   The Tenant shall vacate and hand over vacant possession of the suit premises on or before 1st September 2019 in default an eviction order shall issue without further reference to the Tribunal

4.   The Landlord shall refund the Tenant kshs 40,000 being 50% of the goodwill on or before 30th August 2019 to facilitate the Tenant to relocate her business.

5.   The Landlord shall refund the Tenant the deposit of shs 60,000/- subject to the Tenant paying all the rent due up to and inclusive August 2019.

6.   Each party shall bear its own costs.

Judgment delivered this 5th day of July, 2019 in the presence of Miss Acholaholding brief for Achurafor the Landlord.  Tenant absent. Tenant’s advocate absent.

MBICHI MBOROKI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL