Nderitu Gachuru v Waithera Karanja [2021] KEBPRT 297 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E284  OF 2021  (NAIROBI)

NDERITU GACHURU........................................................APPLICANT/LANDLORD

VERSUS

WAITHERA KARANJA.........................................................TENANT/RESPONDENT

RULING

(NAIROBI BPRT NO. 284 OF 2021 & BPRT No. 284 of 2021 AS CONSOLIDATED)

1. By a motion dated 7th July 2021, the Applicant/Landlord moved this Tribunal seeking for vacant possession of the business premises located at Laikipia Building Githurai 44 immediately and in default, OCS Kasarani Police Station to enforce eviction.

2. He further seeks leave to break into the Respondent’s business premises for own personal use under supervision of OCS, Kasarani Police Station.

3. The application is supported by the affidavit of the Applicant sworn on 7th July 2021 and the grounds on the face of the application.

4. On 6th April 2021, the applicant served a legal termination notice upon the respondent that he intended to terminate the tenancy to enable him put the premises into own personal use.  The said notice was to take effect on 1st July 2021.

5. The Respondent did not oppose the notice but failed to vacate  the premises despite the notice having taken effect.  No reference to oppose the notice was filed either.

6. As a result, the landlord approached this Tribunal seeking an order for vacant possession.

7. The applicant has annexed the affidavit of service in respect of the termination notice.

8. A further affidavit to the application was filed but no replying affidavit was filed by the respondent in response thereto.

9. Instead of filing a response, the Respondent filed Nairobi BPRT No. E287 of 2021 seeking the Tribunal’s leave to file a reference to oppose the Landlord’s notice to terminate tenancy dated 6th April 2021 notwithstanding that the effective date thereof had lapsed.

10. The application is supported by the Tenant’s affidavit sworn on 6th July 2021 and the grounds set out on the face of the application.

11. The Tenant admits service of the termination notice on 9th June 2021 whose effective date was 1st July 2021.  She has annexed the notice as annexture “WK 1”.

12. The tenant deposes that when the notice was served, she was very sick and she approached her advocate Kimani Kahete advocates and being a layman did not have legal knowledge on the procedure of filing the reference and assumed it had no effect as her advocates had her matter.

13. The tenant states that she was in and out of the country and did not confirm if her advocates had filed the reference.

14. She annexes travelling documents marked WK 2 showing a departure date of 7th June 2021 to Istanbul Airport from Doha.  No medical treatment records are however annexed.

15. She claims to have learnt on 6/7/2021 from the Tribunal registry that the reference had not been filed by her advocates.  By then she was already late and the notice had taken effect.

16. The tenant therefore prays that it would be fair and just to allow him to file reference out of time as failure to do so was not intentional but occasioned by factors beyond her control being sickness and mistake by her advocates in failing to file the same.

17. The application is opposed through the Landlord’s replying affidavit sworn on 26th July 2021 in which he states that no treatment notes and notice of appointment of advocates were attached to the application.

18. The Respondent/Landlord maintains that the termination notice was served on 12th April 2021 electronically and she was at all times aware of the notice and chose to ignore the same.

19. It is the Landlord’s case that he was suffering since he was not getting any rent from his premises as the applicant is enjoying the premises illegally and trying to buy time and that he would be prejudiced by granting the orders.

20. The issues for determination herein are as follows:-

(a) Whether the Tenant is entitled to leave to file reference out of time.

(b) Whether the Landlord is entitled to vacant possession of the demised premises.

(c) Who is entitled to costs?

21. The Tenant was served with notice to terminate tenancy on 12th April 2021 as per the affidavit of service sworn by Jefferns K. Kitemi, process server of this court.  The notice was expressed to take effect on 1st July 2021.

22. No notice was issued by the Tenant whether or not she agreed to comply  with the notice as required under section 4(5) of Cap. 301, laws of Kenya neither did she file a reference as required under section 6(1) thereof.

23. As a result, the notice took effect on 1st July 2021 as expressed therein.

24. Section 6(1) of the Act however contains a proviso that grants discretion to the Tribunal for sufficient reason and on such conditions as it may think fit permit such reference notwithstanding that the receiving party has not complied with any of the requirements of the section.

25. Like every other discretion, the power to allow filing of a reference out of time is to be exercised judicially.  It is not to be exercised capriciously or in order to aid an indolent litigant who is woken up from slumber through subsequent events.

26. The Tenant attributes her failure to file a reference to sickness and her advocates mistake without annexing any documents to demonstrate she was sick or that she had engaged an advocate to act for her in opposing the notice.  No affidavit by the advocate or even a letter to confirm the same is attached to the affidavit.

27. Although the tenant has annexed an air ticket showing that she was departing from Doha on 7th June 2021 to Istanbul  Airport, this was long after the termination notice had been served.  It cannot certainly be evidence that she was out of the country as to prevent her from acting on the notice.

28. I am therefore not convinced that the tenant had good reasons not to file a reference opposing the termination notice.

29. As regards the Landlord’s application, the Tenant did not file a replying affidavit and even assuming that her application dated 6th July 2021 constitutes her response, I have already found that the reasons given therein do not constitute a sufficient traverse to the said notice.

30. In the premises, there being no objection to the application to warrant me deny the landlord vacant possession on grounds that he intends to use the premises for his own purpose, I find and hold that the same has merit and is for allowing.

31. In the premises, I grant the following final orders:-

(a) The tenant’s application dated 6th July 2021 is hereby dismissed  with costs.

(b) The landlord’s application dated 7th July 2021 is hereby allowed in terms of prayers 2 and 3 thereof with costs.

(c) The Landlord’s costs for both applications are assessed at Kshs.50,000/- against the Tenant.

(d) The Tenant shall vacate the demised premises within the next fourteen (14) days failing which she shall be forcibly evicted therefrom using a licensed auctioneer.

(e) OCS to provide security.

It is so ordered.

DATED, SIGNED & DELIVERED THIS 17TH DAY OF SEPTEMBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

In the presence of:

Maina for the Applicant

No appearance for the Respondent