Muya & 2 others v Nzyoki [2024] KEBPRT 83 (KLR)

Muya & 2 others v Nzyoki (Tribunal Case E747 of 2023) [2024] KEBPRT 83 (KLR) (2 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 83 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E747 of 2023

Gakuhi Chege, Chair & J Osodo, Member

February 2, 2024

Between

Peter Muya

1st Applicant

Bridget Syombua Muya

2nd Applicant

Matosha Empire (K) Limited

3rd Applicant

and

Melchizedek Ndolo Nzyoki

Respondent

Ruling

1. Before this Tribunal is a notice of motion dated 9th August 2023 brought under Section 12(4) of the Landlord and Tenant (Shops,Hotels and Catering Establishments) Act and Articles 48 and 159 of the Constitution.

2. The Applicants seek for orders that:-i.The Application be certified as extremely urgent, service thereof be dispensed with and the same be heard ex-parte.ii.Pending the hearing and determination of the Application and the Reference herein, the Honorable Tribunal be pleased to issue an order for the forceful removal of the Respondent/Tenant herein from the Applicants’/Landlords’ premises being Plot No.29B, Nguluni Market, Kangundo,Machakos County and vacant possession thereof be given to the 1st and 2nd Applicants/Landlords herei-n.iii.The 3" Applicant/Agent herein do effect and execute the above eviction orders.iv.The Officer Commanding Station (OCS) Tala Police Station do offer security in ensuring compliance with prayers 2 and 3 above.

I. The costs of the Application be borne by the Respondent/Tenant; 3. The application is based on the following grounds:-a.Thatthe Respondent/Tenant herein moved this Honorable Tribunal vide BPRT Case No.E489 of 2022, for grant of ex-parte orders vide application dated 3rd June 2022. (b)Thatin the Application aforesaid, the Respondent/Tenant herein asserted that he had paid rent with respect to the premises under his occupation to wit, Plot No. 29B Nguluni Market in advance up to 29th February 2024. a.Thatin support of the alleged payment of rent in advance, the Respondent/Tenant herein annexed to his supporting affidavit an Agreement dated 5th July 2021 purportedly signed between himself and the 2nd Applicant/Landlady herein.b.Thatthe said Agreement was subjected to forensic investigations by the Directorate of Criminal Investigations and found not to have been executed by the 1st Applicant/Tenant herein and thus confirmed to be a forgery.c.Thatvide its Orders issued on 18th January 2023, the Honorable Tribunal ordered the Respondent/tenant herein to clear all rent arrears.d.Thatthe Applicants' efforts to distress for rent have proved futile on account of the Respondent/Tenant's frustrations, non-cooperation and hostility.e.Thatthe Applicants herein had written to the Respondent/Tenant herein on or about 8th August 2022 communicating termination of the tenancy between the parties herein in line with Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.f.Thaton or about 15th May 2023, the 3rd Applicant/Agent duly instructed by the 1st and 2nd Applicants visited Plot No. 29B, Nguluni Market to levy distress for rent but the Respondent/Tenant herein turned hostile and chased away the 3rd Applicant/Agent from the premises threatening to use force against them.g.Thatthe Respondent/Applicant herein was categorical that only the Government can remove him from the Premises that he continues to occupy (Plot No. 29B Nguluni) without paying rent thus continuously injuring the Applicants interests;h.Thatthe matter was reported to Tala Police station where the police advised that the nature of the dispute was essentially a civil one and there were no orders directed to the Police to participate in any manner in the dispute.i.Thatit is completely unfair and unconscionable for the Respondent/Tenant to continue to forcefully occupy Plot No. 29B Nguluni without paying rent.K.Thatit is necessary for the proper, just and expeditious disposal of the Application and Reterence herein that the orders sought be granted.l.Thatno party snall suffer any prejudice wnatsoever if the Appiication is aliowed.

4. The application is further supported by the annexed affidavit of Bridget Syombua Muyasworn on 7th August 2023 on her own behalf and on behalf of her co-applicants wherein she reiterates the grounds set out on the face of the application stating that she never entered into the impugned agreement with the Tenant/Respondent. She therefore maintains that the said agreement was a complete forgery and denied having borrowed any money from the Tenant/Respondent.

5. The 2nd Applicant successfully sought for an Order that the said Agreement be subjected to forensic investigations by the Directorate of Criminal Investigations pursuant to which an order marked“BSM 2" was issued by this Honorable Tribunal on 3rd November 2022.

6. After the aforesaid forensic investigations, the agreement in question was found not to have been executed by the 2nd Applicant and thus confirmed to be a forgery as demonstrated by annexure marked “BSM3”.

7. This tribunal on 18th January 2023 ordered the Respondent/tenant to clear all rent arrears. The said order is marked as annexure “BSM4”.

8. The Applicants’ advocates on record wrote to the Respondent/Tenant on or about the 10th February 2023 forwarding the Orders of the honorable Tribunal aforesaid and further demanded payment of rent arrears which then stood at Kshs. 112,000/= as per annexure marked "BSM 5".

9. The Respondent/Tenant neither responded to the letter aforesaid nor made any efforts to settle the rent arrears that continued to accumulate and by the time of the application stood at Kshs. 132,000/=. As a result, the 1st and 2nd Applicants were constrained to instruct the 3rd Applicant/Agent herein to levy distress for rent on account of the Respondent/Tenant's failure to clear rent.

10. On or about 15th May 2023, they instructed the 3rd Applicant/Agent to distress for rent but the Respondent/Tenant turned hostile and chased away the 3rd Applicant/Agents from the premises threatening to use force against them. The Respondent/Tenant was categorical that only the Government could remove him from the Premises which he continues to occupy without paying rent thereby continuously injuring the Applicants’ interests.

11. The matter was reported to Tala Police Station where the police advised that the nature of the dispute was civil and there were no Orders directed to the Police to participate in any manner in the dispute.

12. The application is opposed through the tenant’s/Respondent’s replying affidavit sworn on 21st September 2023 wherein he attacks the application as being a fraud, an aftertthought, fishing expedition and a witchhunt.

13. He however confirms that there was a previous case between him and the 1st and 2nd Applicants herein vide BPRT E489/2022 wherein he sought to stop the 1st Applicant from evicting him from the suit premises as he had already cleared his rental obligations with the 2nd Applicant which was explring on 29th February 2024. . The pleadings in the said case are marked "MN-1". According to the Respondent, the said case was still active before this Tribunal.

14. The Respondent contends that the instant proceedings offend the subjudice doctrine as there was already existing an active matter under BPRT E489/2022 and that the Applicants should have instead waited for determination of the said proceedings which matter is yet to proceed for hearing and wherein the Applicants were yet to file their respective defences.

15. According to the Respondent, the report by the documents examiner was yet to be subjected to cross examination as he is totally in disagreement with its contents as per his replies filed under BPRT E489/2022 which is pending for hearing and determination.

16. According to the Respondent, the purported termination of tenancy notice was part and parcel of the proceedings under BPRT E489/2022, the same forms the list and bundle of documents he filed with the court on 16th December 2022 further to his witness statement filed in the aforementioned suit.

17. The Respondent deposes that the issue of the purported notice of termination was an exercise in futility as it formed the background of the suit filed in this court and the 2nd Applicant was trying to use the back door to vindicate her errors in her first attempt to evict him in BPRT E489/2022. The said case was challenging the Applicants' failure to follow the law in the attempted eviction.

18. The Respondent/Tenant had filed a notice of preliminary objection claiming that the instant suit is subjudice in view of Tribunal Case No. E489 OF 2022 and in a ruling of this tribunal delivered on 10th November 2023, the same was dismissed on the basis that there were no pending proceedings in the said case.

19. Consequently, the application herein was directed to be canvassed by way of written submissions and both parties complied. We shall consider the submissions together with the issues for determination.

20. The following issues emerge for determination in this case:-a.Whether the Applicants are entitled to the reliefs sought in the application dated 9th August 2023. (b)Who is liable to pay costs?

21. The basis of the instant suit is a notice to vacate the suit premises dated 1st September 2021 written to the tenant by the 1st Applicant giving him three (3) months to do so. The same was not challenged by way of a reference to this Tribunal under Section 6(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, Laws of Kenya. As such, it took effect by dint of Section 10 of the said Act which provides as follows:-“Where a landlord has served a notice in accordance with the requirements of section 4 of this Act, on a tenant, and the tenant fails within the appropriate time to notify the landlord of his unwillingness to comply with such notice, or to refer the matter to a Tribunal then subject to section 6 of this Act, such notice shall have effect from the date therein specified to terminate the tenancy, or terminate or alter the terms and conditions, thereof or the rights or services enjoyed thereunder”.

22. By an application and reference dated 7th August 2023, the Applicants herein approached this Honorable Tribunal seeking among others an order for the forceful removal and/or eviction of the Respondent herein who is a Tenant at Plot No. 29B Nguluni Market. The said Plot is owned by the 1st and 2nd Respondents herein and has been under the occupation of the Applicant/Tenant for the last fourteen (14) years whereon he conducts his trade. The crux of the dispute between the parties herein hinges on willful refusal by the Tenant/Respondent to pay rent and subsequent refusal to move out from the Premises aforesaid despite service of a Notice of Termination by the 1st and 2nd Applicants.

22. The Applicants contend that despite his refusal to pay rent, the Tenant/Respondent has refused to vacate the premises in question and physically resisted all efforts to remove him. As law-abiding citizens, the Applicants sought the intervention of this honorable Tribunal to order for the forceful removal of the Respondent from the premises aforesaid.

23. In response to the Landlords’ Application aforesaid, the Tenant/Respondent filed two Replying Affidavits and supporting documents all sworn on 21st September 2023. The Respondent in his reply maintained that he has paid rent up to February 2024 and should not be evicted. According to the Applicants, this assertion is not only a deliberate lie but misleading.

24. The crux of the averments therein is that Respondent has produced no iota of evidence in support of the alleged payment. The said allegation having been substantively heard and determined vide NAIROBI BPRT NO. E479 of 2022 wherein this honorable Tribunal pronounced itself on the matter vide its ruling therein and subsequently in a ruling in this matter on the Preliminary Objection delivered herein on 10th November 2023 where it was held that BPRT E479 of 2022 (Nairobi) was concluded. No appeal was preferred against both rulings and no further applications were made thereafter. As such; that determination stands and the alleged advance payment of rent cannot hold.

25. The Applicants have demonstrated that the Tenant/Respondent herein has not paid rent and has resisted all efforts to distress for rent. The Applicants have further demonstrated that the Respondent/Tenant herein was served with a termination notice but has not surrendered vacant possession of the premises subject matter of these proceedings. In his reply, the Tenant/Respondent expressly admits at Paragraph 18 of his replying Affdavit, receipt of the Notice of Termination.

26. Despite being served with the said Termination Notice (annexure “BSM 6”), the Tenant/Respondent herein never contested the Notice. The Applicants were clear on the reasons given for termination being refusal to pay rent which is a valid reason under Section 7(1)(b) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. The termination notice was for a period of three (3) months and gave the Tenant timelines within which to indicate the desire to comply. The notice substantively complies with the requirements of Section 4 of the Landlord and Tenant (Shops,Hotels and Catering Establishments) Act.

27. According to the Tenant, the purported termination letter forms part and parcel of the proceedings under BPRT E489/2022, the same forms the list and bundle of documents he filed with the court on 16th December 2022 and his witness statement filed with this court in the aforementioned suit.

28. He further submits that the purported notice of termination was an exercise in futility, the same formed the background of the suit filed with this court and that the 2nd Applicant was trying to use the back door to vindicate her errors in her first attempts to evict the Respondent thus forming the substance of the suit under BPRT E489/2022.

29. He contends that whereas the 1st Applicant was busy issuing a notice of termination, the same was being done in the backdrop of an already existing suit under BPRT E489/2022 and the temporary orders stopping any eviction. As such, issuance of the said notice of termination was therefore an exercise in futility, the same was purporting to correct what they failed to do in the first place by use of the back door.

30. He submits that it is common knowledge that a party cannot purport to do what he ought to have done in the first place; he cannot be seen to try to vindicate his mistakes when proceedings have already been instituted against him. The Tenant further contends that he was not aware of any order of the court to the effect that the matter under BPRT No. E489/2022 had been conclusively determined. He has equally never been served with the alleged orders of the Tribunal in respect of the applications in BPRT No. E489/2022.

31. The Respondent contends that the alleged notice of termination of tenancy was issued on 8th August 2022 after the commencement of BPRT No. E489/2022. He therefore submits that by the time the 1st Applicant was issuing the notice of termination, the said matter was active in court and among the areas of contention was not only the fact that the Respondent had not been issued with a notice, but rather he had paid rent up to 29th February 2024. He further submits that issuing a notice after the case had commenced purporting to seal the errors was an inconsequential act, an action in futility that cannot be vindicated by law.

32. He therefore contends that the 1st Applicant is estopped from issuing or relying on the said notice which he failed to issue before the said case and which formed part and parcel of the suit earlier filed with the court. As such, the notice was issued irregularly in the pendency of an ongoing suit and a court order for that matter which guaranteed the Respondent a stay on the business premises in the pendency of the determination of the application by this Tribunal.

33. We do not agree with the Tenant/Respondent that the termination notice is invalid by dint of having been issued in the pendency of the previous case between the parties as no law has been cited in support of the said contention. The Tenant failed to pay rent in the pendency of the said case and the Landlords were legally justified to issue the said notice without seeking the Tribunal’s permission as the issue of termination of tenancy was not live in the said case.

34. We have noted that the tenant did not file a reference under Section 6(1) of Cap. 301, Laws of Kenya and instead filed a Complaint under Section 12(4) of the said Act. In absence of a reference under the Act, Section 10 thereof kicked in and the tenant’s tenancy terminated automatically.

35. Section 12(1)(e) of the said Statute empowers this Tribunal to make orders for recovery of possession and for payment of arrears of rent and mesne profits which orders may be applicable to any person whether or not he is a tenant being at the material time in occupation of the prmises comprised in a controlled tenancy.

36. We have no hesitation in finding that the tenant is liable to be evicted from the suit premises having failed to file a reference and to pay rent for a very long period despite the ruling in NairobiBPRT No.E489 of2022.

37. As the Complaint herein raises the same issues as the application under consideration, this ruling shall equally apply to it under Section 12(4) of Cap. 301, Laws of Kenya.

38. Costs of every action before this Tribunal are at our discretion under Section 12(1)(k) of Cap 301, Laws of Kenya but always follow the event unless for good reasons otherwise ordered. We have no reason to deny costs to the Landlords being the successful parties.

39. In conclusion, the following final orders commend to us in this matter:-a.The tenant shall vacate from the suit premises within Thirty (30) days hereof and in default shall be evicted therefrom by the 3rd Applicant.b.The OCS, Tala Police Stationshall provide necessary security to the 3rd Applicant during the eviction exercise.c.The tenant shall pay all the rent in arrears for the period he has occupied the suit premises.d.costs of this case assessed at Kshs 30,000/= are awarded to the Applicants.It is so ordered.

RULING DATED, SIGNED & VIRTUALLY DELIVERED THIS 2ND DAY OF FEBRUARY 2024HON. GAKUHI CHEGE - PANEL CHAIRPERSONHON JOYCE OSODO - PANEL MEMBERIn the presence of:-Maweu for the Landlords/ApplicantsTenant/Respondent in person