Muthoni v Mwathi [2022] KEBPRT 187 (KLR)

Muthoni v Mwathi (Tribunal Case E006 of 2021) [2022] KEBPRT 187 (KLR) (Civ) (31 May 2022) (Ruling)

Neutral citation: [2022] KEBPRT 187 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E006 of 2021

Gakuhi Chege, Vice Chair

May 31, 2022

Between

Mercy Nyambura Muthoni

Applicant

and

Isaac Ichang’a Mwathi

Respondent

Ruling

1. The Respondent herein served a tenancy notice dated 12th November 2021 upon the applicant seeking to terminate her tenancy over L.R No. Nyahururu Municipality Block 6/xxx, Nyahururu Municipality with effect from 1st February 2022 on the grounds that he did not recognize her as a legal tenant or subtenant in the demised premises and that her continued occupation thereof was illegal.

2. The applicant filed a reference dated 15th December 2021 in opposition to the said notice which was fixed for hearing on 28th February 2021.

3. The said reference is opposed through a replying affidavit sworn on 15th February 2022 in which the Respondent deposes that the applicant is a trespasser in the business premises having remained behind after his recognized tenant one Joseph Muchoki vacated therefrom on account of effects of Covid -19 pandemic.

4. The applicant’s advocates wrote to the Respondent a demand letter on 9th November 2021 claiming that she was a subtenant and forwarded a cheque for Kshs.10,000/- as November 2021 rent as per annexure ‘1M1’. The Respondent responded vide his letter of 12th November 2021 and returned the said cheque. The letter is marked as annexure ‘IM2’.

5. On 12th November 2021, the Respondent served a tenancy notice which is the subject matter of this matter and marked ‘IM’. As such the Respondent contends that the reference has no legal basis and prays that an order of vacant possession or eviction do issue against the applicant and that the OCS, Nyahururu Police Station provides security at the time of enforcement thereof.

6. On 28th February 2022, when this matter came up for hearing, both parties were absent and a fresh date fixed at the registry for 28th April 2022.

7. On 28th April 2022, the matter proceeded virtually by way of oral arguments. The applicant prayed that the respondent agrees to collect rent as she had a relationship with him having been present when she did renovations to the premises.

8. According to the applicant, she was told to pay rent to the one the Respondent had given the premises one Joseph Muchoki. She had paid rent up to the date of hearing to the said Joseph Muchoki. However, Joseph Muchoki vacated the premises as he had issues with his business.

9. The applicant testified that there was a case pitting her against Joseph Muchoki over the premises and the latter was told not to remove her. She could not however recall the case number neither did she produce the proceedings thereof.

10. She testified that she had not refused to pay rent and had been in the premises since 2020. She confirmed that she paid rent to the landlord and he returned the cheque.

11. On his part, the Respondent submitted that he rented the premises to Joseph Muchoki and had not discussed at any time with the applicant about tenancy or sub tenancy. It was the Respondent’s contention that his tenant was Joseph Muchoki who wanted to return the premises the way he found it. He maintained that the applicant was a trespasser on the plot.

12. The Respondent stated that he has never received anything from the applicant in form of rent as the cheque sent through her lawyer was returned on account of the fact that she was not a tenant or subtenant.

13. In reply to the Respondent’s submissions, the applicant stated that she had been paying rent through Joseph Muchoki but was not going to call him as her witness. She claimed to have added value to the business premises in the sum of Kshs.100,000/- as it looked deserted. She stated that she was paying rent to Muchoki who was not remitting to the Landlord.

14. According to the applicant, she was a tenant to the Respondent as the original tenant moved out. She submitted that she was occupying the same shop with Muchoki. The last payment was in December 2021. There was no written agreement with the landlord.

15. I am now called upon to determine the following issues:-a.Whether to uphold or dismiss the termination notice.b.Who is liable to pay costs of the reference?

16. The instant proceedings were prompted by the tenancy notice dated 12/11/2021 in which the Respondent required the applicant to vacate the premises with effect from 1st February 2022. She referred the matter to this Tribunal claiming to be a tenant of the Respondent.

17. According to the respondent, he did not recognize the applicant as a tenant or subtenant in the commercial premises owned by him. The applicant however claimed that she was a subtenant of Joseph Muchoki to whom she paid rent. I have seen four (4) Mpesa messages filed together with the reference which I presume are the payments made to the said Joseph Muchoki in the sum of Kshs.10,000/- each dated 6th April 2021, 7th May 2021, 8th June 2021 and 9th July 2021. No corresponding messages have been exhibited to show that the said payments were forwarded to the Respondent/Landlord as rent in respect of the suit premises.

18. There is no evidence tendered before this Tribunal to prove that the applicant was ever recognized as a subtenant of the respondent to warrant her protection from being evicted from the suit premises. Section 107 (1) of the Evidence Act, Cap. 80, Laws of Kenya provides as follows:-“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”.

19. Given that the applicant’s attempt to pay rent to the Respondent after Joseph Muchoki vacated the suit premises was rejected, I find and hold that no landlord/tenant relationship has been proved.

20. Section 12 (1)(e) of Cap. 301, Laws of Kenya gives this Tribunal Jurisdiction to make orders upon such terms and conditions as it thinks fit for the recovery of possession which orders may be applicable to any person, whether or not he is a tenant being at any material time in occupation of the premises comprised in a controlled tenancy.

21. Flowing from the above, it is my considered view that the Respondent is entitled to terminate occupation of the applicant in the suit premises and is entitled to mesne profits calculated at Kshs.10,000/- per month with effect from 1st February 2022 until 21st May 2022 when the Respondent shall be expected to have vacated or be evicted therefrom.

22. Costs of any suit are in the discretion of the trial court unless for good reasons otherwise ordered. I have no reasons to deny the Respondent costs being the successful party in line with the principle that costs of any action always follow the event.

23. In conclusion therefore, I make the following final orders:-i.The landlord’s termination notice dated 12th November 2021 served upon the applicant is hereby upheld.ii.The applicant shall vacate from the suit premises situate on L.R No. Nyahururu Municipality on or before 31st May 2022 and in default she will be evicted therefrom by a licenced auctioneer who shall be provided with security by the OCS, Nyahururu Police Station.iii.The applicant shall pay a sum of Kshs.40,000/- being mesne profits from 1st February to 31st May 2022 in line with Section 12 (1) (e ) of Cap. 301, Laws of Kenya.iv.The applicant shall pay costs of Kshs.10,000/- to the Respondent for this case.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 31ST DAY OF MAY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:-Tenant in personLandlord in person.