Ngugi v Mathenge [2022] KEBPRT 174 (KLR)

Ngugi v Mathenge (Tribunal Case 29 of 2021) [2022] KEBPRT 174 (KLR) (10 June 2022) (Judgment)

Neutral citation: [2022] KEBPRT 174 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 29 of 2021

Gakuhi Chege, Vice Chair

June 10, 2022

Between

James Gitau Ngugi

Applicant

and

Julie Mumbi Mathenge

Respondent

Judgment

1. The landlord issued a tenancy notice dated February 17, 2021 seeking to terminate the tenant’s occupation of the business premises situate on plot no. 517, Njoro Town with effect from May 1, 2021on grounds that on termination, the landlord intends to occupy the premises for a period of not less than one year. The second ground is that the tenant refused to sign a lease agreement even after this Tribunal ordered him to do so.

2. The Tribunal under section 9(1) of cap 301 is required upon a reference to conduct an inquiry and either approve the terms of the tenancy notice concerned or order that the same shall be of no effect.

3. The tenant being opposed to the notice filed his reference dated March 8, 2021on the same date. The landlord filed a replying affidavit sworn on July 26, 2021 and subsequently filed a witness statement dated November 10, 2021.

4. The matter proceeded by way of viva voce evidence and the landlord relied on the documents aforesaid. The landlord is one of the administrators of the estate of Rachel Njeri Wanjama who died on October 4, 2018. Her estate is managed under the trade name ‘Wanjama Holdings’ and the landlord was bestowed the responsibility of rent collection in respect of the suit premises.

5. The landlord testified that she issued a termination notice upon the tenant onFebruary 7, 2021 in the prescribed form as a result of which this reference was filed. The tenant is accused of selective application of court orders issued onDecember 29, 2020by refusing to execute a lease agreement as per order no. 3 thereof in order to evade justice and now seek other forms of relief that fit his situation. The order is to be found on page 2 of the landlord’s witness statement while the draft lease agreement is to be found on page 3-7 thereof.

6. The tenant is also accused of being overly litigious for having continuously sued the landlord and her late mother as evidenced on pages 9-10 of the documents attached to the witness statement.

7. As a result of the tenant’s selective application of justice, the landlord testified that it has become challenging to have a working relationship between them without clear defining terms governing the relationship. It was therefore lawful to terminate the tenancy and that the tenant cannot seek audience of the Tribunal while being in blatant contempt and/or violation of a lawful order by it.

8. According to the landlord, it was only just and fair that her rights are safeguarded since the beneficiaries to the estate of Rachel Njeri Wanjama intend to use the property for their own business.

9. On the other hand, the tenant filed a witness statement which is undated and which he relied upon in evidence. He testified that he has been in the premises since 2004 and was paying rent without default. He confirmed that he filed Tribunal case no. 98 of 2020 (Nakuru) in which an order for new lease agreement was made. The landlord drafted a lease and forwarded the same for his signature. The lease had glaring errors but the landlord threatened the tenant with eviction if he did not sign the same.

10. The tenant stated that he was described in the lease agreement as the landlord and whereas the lessor was Wanjama Holdings, the account to which rent was being paid was in the name of Julie Mumbi Mathenge. The tenant testified that he wants to be given 10 years to move out as he had debts with other companies.

11. The tenant stated that he raised the issue of mistakes in the draft lease agreement with the landlord in writing. The letter is dated January 13, 2021 and is annexed to the witness statement. The letter called for a meeting to be organized between the two parties to agree on the terms of lease.

12. The main cause of the instant dispute is the tenant’s failure to execute a lease agreement as ordered vide Nakuru BPRT No 18 of 2020 which directed as follows:-“1. That the tenant will pay rent reviewed upwards by consent to Kshs.7,000/- effective January 1, 2021monthly in advance.2. That in addition, the Tenant will pay deposit of 7,000/- in in January 2021. 3.That a new lease to reflect this new position be executed on or Before January 5, 2021. 4.That the matter is marked as closed.5. That each party to bear own costs”

13. I have looked at the draft lease agreement attached to both parties witnesses statements and have noted that it prescribed a period of one (1) year with effect from January 1, 2021and ending on December 31, 2021at clause 1(b) thereof. It was drawn by the landlord and sent to the tenant for execution.

14. A lease agreement is a contract whose terms cannot be dictated by one party. The tenant stated that he could not be compelled to execute it.

15. it is not mandatory for a controlled tenancy to be in writing and the Tribunal in my view could not have intended that in the event of failure by the tenant to execute the lease, the tenancy would stand terminated. Had this been the intention, nothing would have been easier than to put a default clause to that effect. This ground of termination therefore fails.

16. In regard to the second ground that the deceased’s family intended to use the premises for own business for more than one year, I note that no evidence was adduced to prove this ground. The type of business intended, the availability of resources and the fact of the unnamed brother of the landlord having lost employment was not proved. It is not enough to pick one of the grounds under section 7 of cap 301, Laws of Kenya and issue a notice. One has to prove the intention under section 107(1) of the Evidence Act, cap. 80 Laws of Kenya which 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”

17. In the case of Eldomart Holdings Limited v Ticket Company Limited(2019) eKLR the superior court while addressing a similar ground for termination of tenancy at page 3/3 had the following to say:-“The legislature left no doubt that the Act was enacted for the purposes of protecting tenants. This court must have the said objective in mind while interpreting the Act. The burden was upon the appellant to establish that it had an intention of occupying the suit premises for a period of not less than one year for the purposes of own business. In the case of Auto Engineering v Gonella (1978) KLR 248, it was held that the onus is on the landlord to establish a firm and settled intention to occupy the premises held by a tenant”.

18. In the instant case, I am not satisfied that the landlord established a firm and settled intention by the deceased’s family to occupy the suit premises for own business for more than one year. This is more so when viewed against the draft lease which proposed to give the tenant a lease of one (1) year from January 1, 2021toDecember 31, 2021. The said ground is in my view an afterthought precipitated by the tenant’s refusal to sign the lease. I therefore reject it.

19. In regard to costs of the reference, the same always follow the event and are in the discretion of the court. I have no reason to deny the tenant costs.

20. in conclusion therefore, the orders that commend to me are:-(a)The tenancy notice dated 17/2/2021 served by the landlord upon the tenant is dismissed.(b)The tenant’s reference is hereby allowed with costs.(c )Costs of the tenant are assessed at Kshs.30,000/- which shall be deducted from the rent account if not paid within the next Thirty(30)Hereof.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10TH DAY OF JUNE 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Njeri Ngugi for the landlordTanga holding brief for Getanda for Tenant