Peris Wacera Kamochee v Joseph Mwangi Wambugu (Sued as the executor of the will of Wambugu Mbora [2019] KEELC 642 (KLR) | Landlord Tenant Disputes | Esheria

Peris Wacera Kamochee v Joseph Mwangi Wambugu (Sued as the executor of the will of Wambugu Mbora [2019] KEELC 642 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC CIVIL APPEAL NO. 2 OF 2019

PERIS WACERA KAMOCHEE......................................................APPELLANT

VERSUS

JOSEPH MWANGI WAMBUGU

(Sued as the executorof the will of WAMBUGU MBORA................RESPONDENT

(Appeal from the judgment and order of the Business Premises Rent Tribunal at Nakuru

(Hon.Mbichi Mbokori, (Chairman) delivered on the 25th January 2019

in the BPRT No.57 of 2016.

J U D G M E N T

1. This is an appeal against the judgment of Mbichi Mboroki, Chairman, Business Premises Rent Tribunal delivered on 25th January 2019 in Nakuru BPRT No. 57 of 2016. By the judgment the Tribunal dismissed the Tenant’s ( Appellant) reference dated 17th August 2016 and allowed the Landlord’s ( Respondent) Notice to Terminate Tenancy dated 22nd July 2016. The Tribunal further ordered the Tenant /Appellant to vacate and handover vacant possession of the suit premises on or before 1st March 2019 and in default eviction to issue. Further the Tribunal allowed the landlord/Respondent to levy distress and recover outstanding rent arrears amounting to Kshs.2,000,000/=. The Tenant was also ordered to pay costs of the Landlord for the reference and the Auctioneers charges in the event of distress.

2. The appellant was aggrieved by the judgment of the Tribunal and has appealed to this Court against  the  whole  judgment of the Hon. Mbichi Mboroki, Chairman  of the Tribunal  and  has set  out  the following  grounds of appeal  as per the memorandum  of appeal dated  6th February  2019 filed in Court on the same date:-

1. That the learned Chairman of the Tribunal erred and misdirected himself in dismissing the Appellants reference to the Tribunal dated 17th August 2016.

2. That the learned Chairman of the Tribunal erred in law and fact in allowing the Respondent’s Notice dated 22nd July 2006.

3. That the learned Chairman of the Tribunal erred in law and fact the failing to find and hold that the Appellant had deposited the sum Ksh.2,000,000/= with Respondent herein as a deposit  to an aborted  sale agreement with the Respondent  and which amount  should have been utilized as rent.

4. That the learned Chairman of the Tribunal therefore erred in law and fact in allowing the Respondent to levy distress and recover the disputed arrears of Ksh.2,000,000/= within 14 days  from the date of the judgment.

5. That the learned Chairman of the Tribunal therefore erred in law and fact in ordering the Appellant to pay the auctioneers charges for the distress for rent and the cost of the reference.

6. That the learned Chairman of the Tribunal erred and misdirected himself in the application of the  principles of the law applicable in all  circumstances of the case and therefore failed to exercise his direction  judiciously.

3. The Appellant prays that the judgment of the Hon. Chairman of the Business Premises Rent Tribunal be set aside and substituted therefore with an order allowing the Appellant’s Reference dated 17th August 2016 and dismissing the respondent’s Termination Notice dated 22nd July 2016. The Appellant further prays for costs of the appeal and the costs before the Tribunal.

4. The brief  facts giving rise  to this appeal are that the appellant was a tenant  in the Respondent’s premises Nakuru Municipality Block 10/20 at a monthly rent of Kshs.80,000/= under a lease /agreement dated 26th August 2008. Prior to the appellant entering into the lease agreement with the respondent the premises had been leased to her late husband one Bernard  Kamoche from 1999 at the monthly rent of Kshs.45,000/=. The Appellant signed afresh lease when her late husband’s lease expired. The appellant paid rent for the  initial  term of the lease ( 5  years and 3 months) and  up to 2015 but declined to pay the monthly  rent from January 2016 stating that  her  husband  had paid a deposit  of Kshs.2,000,000/= towards the purchase  of the property that did not materialize and that  she   was offsetting the rent against  that deposit.

5. The appellant’s nonpayment of the agreed monthly rent prompted the respondent to serve the Appellant with a Landlord’s Notice to Terminate Tenancy pursuant to Section 4(2) of the Land Lord and Tenants( shops, Hotels and Catering Establishment) Act, Cap 301 Laws of Kenya on the ground  that the appellant  had defaulted in payment of rent for a period exceeding two months  when the same had  become due and payable. This was the notice that prompted the Reference before the Tribunal that culminated in the judgment the subject of the instant appeal.

6. The evidence adduced by the parties before the Tribunal where both the Appellant and the respondent testified in support of their respective case is set out in the proceedings before the Tribunal forming part of the record of Appeal. The respondent’s evidence was simply that the Appellant was a tenant at their plot Nakuru Municipality/Block10/20 and was paying monthly rent of Kshs.80,000/=. The Appellant had been a tenant for 10 years pursuant to a tenancy agreement of 26th August 2008. That the appellant had not paid rent for 2 years by 22nd July 2016 when the Respondents gave her a Notice to Terminate the Tenancy. The Respondent/Landlord testified that the Appellant had not paid rent amounting to Kshs2,000,000/=. The Respondent  stated that  the Appellant’s  husband  had bought  the business as a going  concern intimating  that any sum of  Kshs2,000,000/=  that the Appellant’s deceased husband may have paid was for the purchase of the business and could not be applied  towards payment of rent. The Respondent stated the appellant entered into a fresh lease agreement after the expiry of the lease in favour  of her late husband. He stated there was no documentary evidence to support the alleged payment of the sum of Kshs.2,000,000/= by the appellant’s late husband.

7. The Appellant  in her evidence stated  that her late husband  Bernard Kamoche was a tenant in the demised premises from 1999 and was paying  a  monthly  rent  of Kshs.45,000/=. When the lease given to her  husband  expired, the Appellant stated she signed  the lease  dated  26th  August  2008 and that the current monthly  rent was Kshs.80,000/=. The appellant stated her late husband had paid a deposit of Kshs.2,000,000/=  towards  the premises but did not furnish any evidence of the payment or what the payment was for. She testified that she paid rent upto 2015 and had opted to offset rent against the deposit of Kshs.2,000,000/= that  her late husband had paid. She stated she had to resume rent payment from January 2018.

8. The appellant in cross examination agreed there had been a running butchery business as at the time her husband became a tenant in the premises. The appellant admitted she  never participated in the negotiations at the time her husband  negotiated the initial lease but said she was aware he paid a deposit  of kshs2,000,000/=. After the death of her husband the appellant continued to pay the rent of Kshs.45,000/= per  month until  the expiry of the initial  lease in favour  of her husband. Upon  renewal  of the lease in her name the rent was revised and agreed at Ksh.80,000/= which she continued to pay up to 2015 when she decided  to offset further rent against  the deposit of Kshs.2,000,000/=. The Landlord/Respondent was not agreeable to that and hence the notice to terminate the tenancy and the resultant reference before the Tribunal.

9. I have endeavored to set out, albeit, briefly the evidence adduced by the parties before the Tribunal because as an appellate Court of first instance  this Court has a duty and indeed  an  obligation  to reevaluate the evidence, assess it and make its own conclusions . That  is in accord  with the Principles  stated in the case  of  Selle – vs- Associated  Motor Boat Co. Ltd (1968) EA 123 and Williamson Diamonds Ltd –vs- Brown (1970) EAI. In Selle -vs- Associated Motors Ltd ( Supra)  the duty  of an appellate  Court  was set out in these words.

“—the duty  of the first  appellate court is to rehear the case by considering  the evidence on record, evaluate  it itself  and draw  its  own conclusion, in deciding whether  the judgment of the trial  court should be  upheld as well of course,  deal with any  questions  of law raised  on the appeal.”

10. The Court  hearing the appeal must however be cautious  before interfering with the trial Court’s findings of fact and should not  do so  unless  it is patently clear the findings were based on  no evidence at all, or on a misapprehension of the evidence  or  if it is demonstrated that the Court  acted on wrong  Principles in reaching the findings. In the case of Kiruga –vs-  Kiruga  & Another (1988) KLR 348 the Court held  that :-

“An Appeal Court cannot properly substitute its own factual findings for that of a trial Court unless there is no evidence to support the finding or unless  the judge can be said to be  plainly wrong”

11. In the matter before the Court the evidence was that the  respondent served a notice for termination of tenancy on the appellant on the ground that the appellant  had failed  to pay rent  for a period exceeding two months  after the rent  had fallen due. The appellant before the Tribunal admitted she had paid rent up to 2015 but stopped payment of further rent ostensibly because  she was offsetting rent from a deposit of Ksh.2,000,000/= that her late husband  had paid to the landlord. It is not clear or apparent when the alleged deposit of Kshs.2,000,000/= was paid. There was no receipt or acknowledgement of the payment produced in evidence. It was further  not clear when the deposit was paid, and if indeed it was paid, for what purpose. From the evidence the appellant’s husband died before she entered into the lease agreement dated 26th August 2008. In her evidence the appellant  stated  that  when the lease  entered  into by her husband expired she entered into a lease in her own name and the rent was  revised from Kshs.45,000/= to Kshs.80,000/=. She stated she paid rent at Kshs45,000/= until her late husband’s lease expired. If her husband had placed a deposit of Kshs.2,000,000/= why did  it take the appellant more than  7 years to seek to  appropriate the same  as rent?. Why was no agreement struck in regard to any such deposit at the time she signed the fresh lease? Further, how come she did not seek a formal agreement with the landlord in regard to offsetting the deposit against rent?These questions beg answers and no answers were availed.

12. From the evidence it is evident that the decision of the appellant to offset the rent from the alleged deposit was unilateral and was not consensual. While there was no clear evidence by the respondent that there was  such a deposit  paid, the respondent stated the appellant’s  late husband  and the landlord ( now also deceased) negotiated the terms of the initial  lease which included  sale of the business that was ongoing  in the premises. According to the Respondent the payment of Kshs.2,000,000/= was for the purchase of the business. The learned Chairman of the Tribunal held that there was no documentary evidence to support the payment of the sum of Kshs.2,000,000/= and/or any evidence to show what the payment was for. The  Chairman further held  the appellant’s  act of offsetting Ksh.2,000,000/= against the rent due to the landlord  lacked any legal foundation and that  it was calculated  to deprive  the landlord  of  rent that had  fallen  due.

13. Upon evaluation of the evidence I do not find any basis upon which I could possibly fault the learned Chairman of the Tribunal. There was clearly no evidence to support the payment of the sum of Kshs.2,000,000/= and or if it was paid, the  purpose for which it was paid. The averment that it was for the purchase of the business that was being carried on in the premises cannot be discounted. The Appellant admitted in evidence that she was not present when her husband negotiated the lease terms and therefore could not clarify on what account the deposit was paid, if at all it was paid. The fact that the appellant entered a fresh lease agreement with the Landlord in August 2008 after her husband’s death and there was no mention of the alleged deposit in the new lease speaks volumes. The appellant further paid rent up to 2015 without raising any issue of the deposit. What changed to trigger the unexplained decision to offset the rent from the alleged deposit?

14. The undeniable fact was that at the time the Landlord served the Tenant /Appellant the Notice to Terminate the Tenancy dated 22nd July 2016, the tenant had not paid rent for a period exceeding two months. There was no agreement that she could offset the rent from any deposit. The tenant had been paying rent from 1st October 2008 when her lease commenced and there was no evidence tendered to show that the mode of rent payment had been altered in any respect. The Tenant/ Appellant could not arbitrarily determine how and when to pay rent when there was a lease agreement that provided how the rent was payable. Any alteration of the lease agreement could only be effective if there was agreement between the parties. There was none.

15. The net result is that find no merit in the appellant’s appeal and the same is dismissed with costs to the Respondent.

JUDGMENT DATED SIGNED AND DELIVERED AT NAKURU THIS 28TH DAY OF NOVEMBER 2019.

J M MUTUNGI

JUDGE