Philis Wanjiru & Roselyne Awino Magolo v Rwathia House Trading Co. Ltd [2021] KEBPRT 480 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 56 & 57 OF 2021 (NAIROBI)

PHILIS WANJIRU.....................................................APPLICANT/TENANT

ROSELYNE AWINO MAGOLO..............................APPLICANT/TENANT

VERSUS

RWATHIA HOUSE TRADING CO. LTD.... RESPONDENT/LANDLORD

RULING

1. This Ruling relates to Tribunal Case No. 56 and 57 which were consolidated. The Applicants/Tenants both made applications to this Tribunal through Notices of Motion dated 20th January, 2021seeking orders that the Respondent/Landlord be prohibited and restrained from unlawfully evicting them. The premise of the applications is that the Respondent/Landlord had issued a threat to evict the Applicants/Tenants unlawfully and that the Respondent/Landlord intends to use the renovations on the suit premises as a reason to vary or alter the terms of the tenancy and eventually unlawfully evict the Applicants/Tenants.

2. The applications are supported by the Affidavits sworn by Philis Wanjiru and Roselyne Awino Magolo dated 20th January, 2021 and sworn on the even date. In the Affidavits it is deponed therein that the Applicants/Tenants have occupied the premises on L.R. No. 209/2489/43at Ngara for over 10 years and have each been paying monthly rent of KShs. 12,000. 00. They aver that in February 2020, the Respondent/Landlord requested that they give vacant possession to enable them to undertake renovations on the suit premises. They stated that due to the Covid-19 pandemic, they closed down their businesses in line with the government directive and when they intended to resume business later in the year, they were unable to do so as the Respondent/Landlord was yet to conclude the renovations on the premises. They further averred that they believe that the renovations were a ploy by the Respondent/Landlord to evict them.

3. The applications are opposed by Affidavits dated 29th January 2021 sworn by Abraham Mwangi on behalf of the Respondent/Landlord. It is deponed therein that the Applicants/Tenants were among the over ten tenants who were served with Notices requesting them to give vacant possession over the suit premises to allow for renovations. It is averred that the said renovations are still ongoing and that the Respondent/Landlord did not threaten the Applicants/Tenants with eviction and furthermore there is no ongoing business on the suit premises. It is further stated that the Tribunal should send its officer to the suit premises to report on the status of the premises and that there were no Notices of eviction issued to the Applicants/Tenants.

4. On 4th March, 2021 the Tribunal recorded a consent between the parties as follows:

i. The Tribunal’s Rent Inspector to visit the business/suit premises and write a report on the status of the two tenants with regard to possession and the state of renovation of the same;

ii. Both parties to share the cost of the Inspection;

iii. Mention on 18th March, 2021;

iv. Interim orders in both files extended.

5. On 18th March, 2021 a Report on the site visit on business premises situated at Ngara dated 12th March, 2021prepared by the Tribunal’s Rent Inspector was presented before the Tribunal. In summary, the findings of the Report are as follows:

i. There is a new building being put up on the same plot opposite the one in question by the same Landlord;

ii. Renovations are ongoing on the suit premises on the ground floor and that the intention is to divide the initial larger rooms to create more rooms;

iii. The Tenant’s tools of trade are outside the premises and they were removed to create room for renovation and the same were stored in a store upstairs;

iv. There was a confirmation that the suit premises had not been occupied for some time due to the ongoing renovations.

6. The parties agreed that the Tribunal should rely on the Rent Inspector’s Report dated 12th March, 2021 and that there was no need to file written submission. I have reviewed the parties’ pleadings and the aforementioned Report and from the outset it is clear that the main issue for determination is to whether the Respondent/Landlord has attempted to evict the Tenants/Applicants.

7. The premise of the Applicants/Tenants applications is that the Respondent/Landlord intends to unlawfully evict them from the suit premises. However, in making their allegation, they merely state that the Respondent/Landlord has threatened to evict them with the help of the chief or “askaris” and have failed to produce any evidence to that effect. In addition to this, they have not adduced any evidence that an eviction notice was issued and the Respondent/Landlord has stated that they did not issue any.

8. The Landlord/Respondent issued a Notice to the Applicants/Tenants seeking that they allow for the renovations and after the conclusion, they will be allowed to continue occupying the suit premises. The Report conducted on the suit premises reveals that indeed there are ongoing renovations and that the same are yet to be concluded. The Report further indicates that the Tenant’s tools of trade are stored in the Landlord/Respondent’s premises an indication that there is an intention to maintain the relationship between them and the Tenants. Furthermore, the intention of the Respondent/Landlord was not established to warrant termination of the tenancy of the tenant.

9. Therefore, I hereby find that the Applicants/Tenants applications are unmerited and dismiss the same with costs to the Respondent/Landlord.

HON. ANDREW MUMA

VICE-CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

DATED, SIGNED AND DELIVERED BY HON GAKUHI CHEGE THIS 23RD DAY OF APRIL, 2021 IN THE PRESENCE OF MR KITHINJI FOR THE LANDLORD/RESPONDENT, MR NYAKOE FOR THE TENANT/APPLICANT.

HON. GAKUHI CHEGE

VICE-CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL