Said & another v Timiro [2022] KEBPRT 884 (KLR)

Said & another v Timiro (Tribunal Case E118 of 2021) [2022] KEBPRT 884 (KLR) (Civ) (18 October 2022) (Ruling)

Neutral citation: [2022] KEBPRT 884 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E118 of 2021

Gakuhi Chege, Vice Chair

October 18, 2022

Between

Khairiya Islam Said

1st Landlord

Barka Islam Said

2nd Landlord

and

Khadija Timiro

Tenant

Ruling

1. The landlords filed a reference dated December 14, 2021 seeking a declaration that the tenancy between them and the tenant with respect to premises situated on plot no Mombasa/Block XL/20 was terminated effective October 1, 2021 pursuant to a notice of termination dated July 15, 2021.

2. The landlords further sought for an order that they are entitled to possession of the premises situated on the said plot.

3. Prayer 4 is for an order restraining the tenant from interfering with the subject business premises and that the OCS Mombasa Central Police Station ensures compliance.

4. The application is supported by the affidavit of the 1st landlord of even date and annexures thereto. The tenant was accused of being irregular in payment of rent and persistent default in rent payment which led to issuance of notice of termination of tenancy dated July 15, 2021 undercap 301, Laws of Kenya. The notice was to the effect that the tenant is highly and persistently in default of rent payment which led to issuance of notice of termination of tenancy dated July 15, 2021 under cap 301, Laws of Kenya. The notice was to the effect that the tenant is highly and persistently irregular in rent payment and had defaulted in paying rent for a period of more than two months. The notice is marked “B”.

5. An affidavit of service in respect of the notice is attached as annexure “C”. The tenant did not file reference in opposition to the said notice as required under section 6 of cap 301 as confirmed by annexures ‘D’ & ‘E’.

6. As a result, the tenancy terminated on October 1, 2021 and the landlords became entitled to possession of the premises which is the basis of the reference.

7. According to the notice of termination of tenancy, the tenant was in rent arrears of kshs 560,000/- as at July 15, 2021 when it was issued.

8. The application is opposed through a replying affidavit of the tenant sworn on July 4, 2022 where she denies ever being in rent arrears during the entire period of tenancy. She also denied being irregular in payment of the rent and challenged the tenancy notice as improper.

9. The tenant contends that in the year 2020, the landlord served her with notice to increase monthly rent marked ‘KT-1’ dated October 14, 2020 whereupon she objected thereto vide case no 108/2021 and obtained interim orders. The notice was however withdrawn by the landlord vide a letter dated May 25, 2021 marked ‘KT-2’.

10. Subsequent rent payments were being made through the tenant’s lawyers Mathenge Wambugu & Co Advocates for onward transmission to the landlords advocates as per annexure marked ‘KT-3’ being rent for April-December 2021.

11. All demands for rent payment were being made through the tenant’s said advocates and she deposes that no copy was served upon her. As such, she was never notified of any rent arrears or unremitted funds by the landlords or their advocates.

12. Upon realization of the unlawful and unprofessional act of her previous advocates in early December 2022, she immediately paid all the rent arrears to the landlords’ advocates vide annexure KT-4.

13. The tenant admits that her previous lawyers issued bad cheques and this forced her to look for money elsewhere. However, the landlord’s advocates failed to disclose existence of this case.

14. The tenant contends that she was still in possession of the suit property and some of the sub-tenants still pay rent to her although the landlords had forced some few subtenants to enter into leases on account of constant harassment. She annexes rent payment receipts marked ‘KT-7’ as evidence of possession.

15. The landlords filed a further affidavit sworn by the 1st landlord on July 21, 2022 wherein it is deposed that the case by the tenant vide MSA BPRT Case no 108 of 2021 was dismissed on account of her failure to pay rent.

16. The landlords exhibit a trail of correspondences exchanged between their advocates and those of the tenant including evidence of distress for rent.

17. According to the landlords, they took possession of the suit property after this tribunal orders of February 1, 2022 and thereafter entered into tenancy relationship with new tenants as evidenced by annexure ‘K’. As such it is the landlords contention that the tenant’s case has been overtaken by events.

18. The application was directed to be disposed of by way of written submissions but only the landlords’ counsel complied.

19. The issues for determination in this matter going by the pleadings are:-a.Whether the landlords are entitled to the reliefs sought in the reference dated December 14, 2021. b.Who is liable to pay costs?

20. Section 4(2) of cap 301, Laws of Kenya provides as follows:-“A landlord who wishes to terminate a controlled tenancy or to alter, to the detriment of the tenant any term or condition in, or right or service enjoyed by the tenant under such a tenancy shall give notice in that behalf to the tenant in the prescribed form”.

21. Section 7(1) (b) of the said Act provides one of the grounds for termination of tenancy to be:“that the tenant has defaulted in paying rent for a period of two months after such rent has become due or payable or has persistently delayed in paying rent which has become due or payable”.

22. The landlord herein served a tenancy notice upon the tenant on July 15, 2021 as evidenced by annexure marked ‘C’. The tenancy notice is in the prescribed format and is marked as annexure ‘B’. The reasons cited in the notice are that the tenant had failed to pay rent for March-July 2021 @ kshs 120,000/- per month save for March 2021 whose balance is kshs 80,000/-. The second ground is that the tenant had defaulted in paying rent for a period of more than two (2) months after such rent had become due and payable.

23. The notice was expressed to take effect on October 1, 2021 if the tenant did not oppose it and file a reference thereto.

24. It is the landlord’s case that the tenant did not oppose the notice nor file a reference under section 6(1) of cap 301 Laws of Kenya as a result of which the same took effect under section 10 of cap 301 Laws of Kenya.

25. Section 10 of the said Act 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”.

26. It is not in dispute that the tenant did not file any reference against the landlords’ notice subject matter of the proceedings. Although, the tenant states that the reasons given in the notice to terminate the tenancy are not valid in that she had remitted the rent to her former advocates who failed her, that is besides the point. What is before me is whether she filed a reference and if not whether the tenancy notice had taken effect.

27. While it could be true that her lawyers failed her by non-remittance of rent deposited with them to the landlords’ advocates, she nonetheless is bound by the acts of her agents as a principal in line with the law of agency. The tenant was duty bound to ensure that what was deposited with her lawyers was remitted to the landlords. She cannot blame the landlords for the failure of her advocates in doing so.

28. In the case of Karanja vs Phoenix of EA Assurance Co Ltd(1991) eKLR it was held as follows:-1…………2. An act of an agent within the scope of his actual or apparent authority does not cease to bind the principal merely because the agent was acting fraudulently and in furtherance of his own interests”.

29. Although the tenant claims to have paid rent to her advocate who failed to remit the same to the landlords, she cannot claim not to have fallen into arrears during the period when the money was held by the former albeit fraudulently or dishonestly. Her recourse lies elsewhere and not before this tribunal.

30. In the premises, I am convinced that the landlords have been able to prove that they were entitled to issue notice to terminate the tenancy and as such to the reliefs sought in the reference herein plus costs of the suit.

31. Consequently, I proceed to make the following final orders:(i)The landlords’ reference dated December 14, 2021 is allowed in terms of prayers 2,3,4 and 5 with costs.(ii)The tenant shall pay kshs.30,000/- as costs to the landlords.It is so ordered.

RULING DATED, SIGNED & VIRTUALLY THIS 18TH DAY OF OCTOBER 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling Read in the presence of:Hassan for the landlordMwawasaa for the tenant holding brief for Abdulahi