Samuel Mbogo Mwangi t/a Unity Bar and Restaurant v Risper Wamaitha Gichanga & Public Health Officer (Nkaimurunya Ward Kajiado County) [2021] KEBPRT 403 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 215 OF 2020 (NAIROBI)

SAMUEL MBOGO MWANGI T/A

UNITY BAR AND RESTAURANT...............................................TENANT/APPLICANT

VERSUS

RISPER WAMAITHA GICHANGA......................................LANDLADY/RESPONDENT

THE PUBLIC HEALTH OFFICER.................................................AGENT/RESPONDENT

(NKAIMURUNYA WARD KAJIADO COUNTY)

RULING

Parties and Their Representative

1. The applicant herein is the Tenant on plot No. L.R No. 141 Ongata Rongai (herein after referred as the suit premises’) having entered into the lease agreement over the said property. Which lease agreement commenced on 1st November 2000.

2. C.K Chege & Co. Advocates represents the Tenants in this reference. Clement.chege0@gmail.com

3. The Respondents are; the landlord and the registered proprietor of the suit premise that is the subject matter of the present reference and the landlord’s agent.

4. Elizabeth Agutu & Company Advocates represents the Respondents. Lizwakili5@gmail.com

THE DISPUTE BACKGROUND.

5. On 8th May 2000, a lease agreement of 5 years and 3 months was entered between the Tenant and the Landlord (Deceased, survived by the spouse, the Landlady herein). Which lease expired after the said period. The Tenant admits that after the expiry he did not renew the lease and that there is no written lease between him and the landlords. Which deponent is affirmed by the Landlord.

6. The Tenant on 3rd of March 2021 moved the tribunal by way of a certificate of urgency and obtained orders dated 3rd  March 2021 which orders restrained the landlord and her agents, servants and employees from harassing, intimidating, evicting, levying distress, demolishing the Tenant’s premises or disconnecting any utilities to the Tenant’s business premises on Plot No. 141 Ongata Rongai Town or interfering with the Tenant’s peaceful and quiet possession, occupation and enjoyment of the said premises hearing and determination of the application inter partes.

7. On 3th March 2021, the Landlord moved this honorable tribunal by way of a Notice of Motion dated 4th March 2021 and amended on 15th March 2021 seeking inter alia orders that:

a. That the application be certified as urgent and heard ex-parte in the first instance.

b. That this tribunal be pleased to issue an order allowing the landlady/Applicant to access plot Number 141, being the suit premise.

c. That this tribunal be pleased to issue an order compelling the Tenants to vacate the suit premise.

d. That this tribunal be pleased to issue an order allowing the Landlady to access the suit premise.

The Landlady obtained orders dated 5th March 2021which orders certified the application as urgent and the hearing and determination of the application be interring partes.

These applications are the subject matter of this ruling and parties have filed responses and submissions to them.

THE TENANT’S CASE

8. The Tenant contend that the Landlady is using Public Health Officer- Nkaimurunya Ward-Kajiado county to evict the Tenant from the tenancy premises without following the law.

9. They further states that the Landlady is intending to terminate the tenancy without following the law. They contend that the Landlord is threatening to levy distress for unknown rent arrears and she is also threatening to disconnect water & electricity connected to the tenancy premises for unknown reasons.

10. In responding to the Landlady’s Notice of Motion dated 4th March 2021, the Tenant deponed that the Landlord used a wrong procedure in seeking to terminate the tenancy. He deponed that owing to the Landlord’s conduct of failing to comply with the requisite notice as per section 4(2) and that the tenancy therein is controlled tenancy therefore the present application is defective, misplaced, premature and an abuse of court process and the same should be dismissed with costs.

11. Further, the Tenant deponed that, contrary to the Landlord’s deponent, the suit premise is in a good condition. That the suit premise was in March and June inspected by the Public Health Officials who affirmed that the suit premise was well in condition as per the health requirements and issued him a license to the effect to operate the bar and restaurant in the tenancy premise.

THE LANDLORD’S CASE

12. In her Notice of Motion dated 3rd March 2021, the Landlady contend that the Tenant has tragically, however, not only refused/ignored to vacate the suit premise to allow the landlady comply with the Statutory Notices but has equally made it practically impossible for the Landlady to access the suit premise to conduct any repair works and has gone as far as fencing the property without the consent of the Landlady.

13. The landlady in her Replying Affidavit dated 15th March 2021 deponed that the Applicant/Tenant had executed a lease Agreement with her late husband, on 8th May 2000 which agreement expired after Five (5) years and three (3) months but was never renewable on the grounds that the Tenant blatantly failed to have the said lease renewed.

14. The landlady further in her Affidavit admit that she has never had neither an oral nor written lease subject to the suit premise after the expiry of the lease agreement above mentioned. She stated that, the Tenant has for a long time been trying to lay a claim of being a part owner of the demised premise and allude this to his persistent refusal to vacate the suit premise.

15. The landlady in her deponent denies to have colluded with the Public Health Officer Nkaimurunya ward- Kajiado to harass and evict the Tenant. She avers that she received a statutory Notice dated 8th May 2020 from the County Government of Kajiado, Health services to the effect that there was nuisance arising from the suit premise in respect of the hereunder listed factors:

a. Dilapidated Building Structure;

b. Failing to provide a functional septic tank;

c. Defective waste water carriage system; and

d. No defined rear exists.

16. She further contends that, after receiving the said Notice that ordered her to overhaul the existing buildings within seven (7) days, she duly notified and instructed all Tenants to vacate the demised premise courtesy of the Statutory Notice and all but the Tenant/applicant herein refused to adhere her directive. The Tenant’s refusal to vacate was premised on the allegation that the Notice had been improperly addressed to him. The landlady categorically states that the name she used in the impugned Notice was the exact name appearing and used in the aforementioned lease agreement.

17. Landlady in her further Replying Affidavit deponed that the reason behind the County Government of Kajiado issuing the said Notice to demolish the demised premise was that the suit premises were in a deplorable condition.

18. Further, Jacob Amake, working for gain as a Public Health Officer in Nkaimurunya ward of Kajiado and therefore duly competent to swear an affidavit, in a sworn affidavit deponed that a nuisance existed and still exists in the suit premise and it is the reason thereof for the issuance of the Statutory Notice.

19. Further in his deponent, he states that the Tenant delayed the follow up process on compliance by giving the false information on the ownership of the suit premise.

JURISDICTION

20. The Jurisdiction of this Tribunal is not in dispute.

THE TENANT’S SUBMISSION.

21. The Tenant filed undated submission in support of his case. He submitted that the tenancy herein is a controlled one and that if the landlady wishes to terminate the same, she must serve the Tenant with the requisite Notice in accordance with section 4(2) of Cap. 301.

22. The Tenant further submit that he was not served with the said Notice. Also that the said Notice as attached on the Landlord’s Replying affidavit was addressed to a wrong person. That the said Notice addressed Samuel Mukundi Mwangi whereas the Tenant’s name is Samuel Mbogo Mwangi. In buttressing his position, the Tenant sought the court to note that the Landlord did not produce and affidavit of service and therefore never served the Tenant.

23. Further, it is Tenant’s respectful submission that the Landlady is using the Notices issued by the 2nd Respondent to terminate the Tenancy herein. That the actions of the landlady are illegal and unlawful since the tenancy herein is a controlled one and the same can only be terminated through issuance of the requisite notices as provided in section 4(2) of Cap 301. Also, that the landlady cannot use the said Notices to terminate the tenancy herein.

24. The tenant submit that the Landlady has colluded with the 2nd Respondent, the Public Health Officer, to evict the Tenant from the suit premises. They ground this on the two Notices issued by the 2nd Respondent. Which Notices are dated on 8th May 2020 and 12th February 2021 respectfully. That the landlady has not complied with the said Notices yet no legal action has been taken against her by the issuer of the Notice.

THE RESPONDENTS’ SUBMISSIONS

25. The Landlady filed written submission dated 12th May 2021. She submitted that much as there in no subsisting Lease Agreement between the Tenant/Applicant and the Landlady/Respondent, it is undisputed fact that the Tenant’s occupation of the demised premises began way back in the year 2000 while the Landlady’s deceased husband was still alive.

26. Further, she submits that it is equally undisputed fact that the 2nd respondent herein, that is the Public Health Officer of the County Government of Kajiado, served the landlady with the Statutory Notices, she submits that the 2nd Notice drawn by  Mr. Jacob Amake, who is the Public Officer, county/government of Kajiado and is addressed to the landlady who was required inter alia to demolish the structurally unsound, condemned buildings, dilapidated to pave ways from modern ones and to overhaul the existing pit latrines and provide a functional septic tank with proper waste water/sewerage system and to restore clean water supply to the plot

27. She submits that the Termination Notice dated 13th May 2020 which was supposed to take effect from the 1st of August 2020 was well received by this Tribunal for as required has a requisite stamp.

28. It is landlady’s humble submission that the names “Samuel Mukundi Mwangi” and “Samuel Mwangi Mbogo” refer to one and same person.

29. It is her submission that the continued failure by the Tenant to allow the Landlady to have access to the suit premises amounts to economic sabotage especially considering the fact that the Tenant is equally claiming the said property despite not laying any substantial proof of the claim.

30. The Public Health Officer in his Submission stated that the Notice of Motion dated 3rd March 2021, its reference s and the subsequent enjoinment of the public health officer carrying his constitutional statutory mandate to undertake implementation of the Public Health Act, which he actually did by serving the landlady with the Statutory notices to comply dated 8th May 2020and12th February 2021 herein marked as “SM3” should be deemed fatal and dead on arrival.

31. In his humble submission, the Public Health Officer stated that Tenant’s Notice of Motion sought orders which are touching on fundamental freedom in the Bill of Rights and the objectives of the Public Health Act, Cap 242, thus the fundamental right of the right to enjoy a clean, safe and sanitized environment should not be prejudiced by the right of the Tenant to tenancy under section 12 and 6 ofCap 301 as read with Cap 293 section 6. That this Application should therefore fail by all reasons and purposes since all laws meant to regulate legal processes and met justice should not be regulated to the realm of technicality.

32. He further submitted that the intent and purpose of both Public Health Act and Building and Construction Code Act is to ensure compliance to statutory requirements within a jurisdiction in order to abate nuisances resulting to hazards and calamities

ANALYSIS OF LAW AND DETERMINATION.

33. I have carefully analyzed all the Pleadings before this honorable Tribunal, all Submissions by parties herein and relevant evidence adduced before this Tribunal. There being no contestation as to the Jurisdiction of this Court, I shall then proceed to the meritocracy of the applications before me.

34. I find that two main issues fall for determination by this Tribunal. Which issues shall be addressed and be dispensed with in limbs. The said issues are;

i. Whether controlled tenancy ensued from the continued stay and paying of the rent by the Tenant in the suit premise; and

ii. Whether the Tribunal should grant the orders as sought by the Landlord in her Notice of Motion dated 3rd March 2020.

I. Whether controlled tenancy ensued from the continued stay and paying of the rent by the Tenant in the suit premise.

35. The issue of whether there existed a controlled tenancy between the Tenant and the Landlord shall be addressed by making a determination on whether there is a contract?

36. In RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG (UK Production) [2010] UKSC14, [45],the Supreme Court of the United Kingdom addressing itself on consideration as an essential ingredient for a contract stated thus:

“The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations.

37. Furthermore, in Fidelity Commercial Bank Limitedv Kenya Grange Vehicle Industries Limited [2017] eKLR; the Court strongly affirmed consideration as a key element in the establishment of a contract and pronounced itself as follows:

“It is elementary learning that for there to be a contract, there has to be an acceptance of an offer on the same terms of the offer and such acceptance must be unconditional, unequivocal and absolute, accompanied by consideration.”

38. Both parties admitted in their cases that there was no renewal of the tenancy after the expiry of the lease between the Tenant and the Landlord yet the Tenant continued staying in the demised premise religiously paying the rent as per the terms of the former lease agreement.

39. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act CAP 31 section 2 defines controlled tenancy as: -

a) A tenancy of a shop, hotel or catering establishment-

b) Which has not been reduced into writing; or

c) Which has been reduced into writing and which-

i. Is for a period not exceeding five years; or

ii. Contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof; or

iii.  Relates to premises of a class specified under subsection 2 of this section.

Provided that no tenancy to which the Government, the Community or a local authority is a party, whether as landlord or as tenant, shall be a controlled tenancy;

40. Associating myself with the foregoing dispositions, and with the present facts before this Tribunal, I find that, there existed a valid contract between the Tenant and the Landlady. The continued stay by the tenant and continuous acceptance of the consideration being rent by the landlord created a month to month tenancy which was of a controlled nature governed by the act. Not reduced into writing.

41. With full consideration of all the relevant facts hereof, I find that there existed Controlled tenancy between the Tenant and the Landlord.

II. Whether the Tribunal should grant the orders as sought by the Landlord in her Notice of Motion dated 3rd March 2020 and Amended on 15th March 2021.

42. The foregoing issue shall be distilled in folds as follows:

a. Whether the Landlord’s Application should be struck out.

43. The Tenant is his Response to the Application by the Landlord dated 3rd March 2021 and Amended on 15th March 2021, deponed that the said application be struck out on the grounds that both the Reference and the Application are misplaced, premature and an abuse of Court process and as such must be dismissed with costs.

44. Order 2 Rule 15 of Civil Procedure Rules espouses striking out of the pleadings by competent court or tribunal. It states:

15. (1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—

a. It discloses no reasonable cause of action or defence in law; or

b. It is scandalous, frivolous or vexatious; or

c. It may prejudice, embarrass or delay the fair trial of the action; or

d. It is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

45. The guiding principles and grounds for striking out pleadings were clearly set out in the Court in the case of DT Dobie & Company (K) Limited vs Muchina [1982] KLR.In its rendition, the Court affirmed that for a pleading to pass the test of being struck out, then the parties must prove that: the said pleading does not disclose reasonable cause of action; it is scandalous and is an abuse of the Court process.

46. In its wisdom, this Tribunal in the recent case of Leo Investment Limited vs. Samson Oloolmaitain, case No. 60 of 2020 affirmed that, the power of this Court to Strike out pleadings is not mandatory but rather permission. Thus, it needs to be sparingly exercised with sheer caution in a manner that does not drive the parties from the seat of justice.

47. In the case of Elijah Sikona & Jane Pariken Warok on behalf of Trusted Society of Human Rights Alliance Vs. Mara Conservancy & 5 others civil case No. 37 o 2013 [2014] eKLR the Court when dismissing an application seeking to strike out a Plaint on an assumption that it was an abuse of Court process observed that;

“…. Striking out is a jurisdiction which must be exercised sparingly and in clear and obvious cases. Unless the matter is clear and obvious a party to litigation is not to be deprived of his right to have his suit determined in a full trial. The Court ought to act cautiously and carefully and consider all facts of the case without embarking upon a trial thereof before dismissing a case for not disclosing a reasonable cause of action or being otherwise abuse of Court process.”

48. While the Tenant contends that the Application by the Landlord amounts to the abuse of Court process, he has failed to satisfactorily demonstrate and substantiate the same, as such the deponent is destitute of merit. Further, in a keen analysis of the impugned Application, this Tribunal finds that the Application contain triable issues which this Court shall allow for their ventilation. Thus, the Application is well before this Court and full trial is hereby given.

b. Whether there was a termination Notice.

49. I have well established that there existed a controlled tenancy between the Landlord and the Tenant. Termination of the said tenancy requires issuance of a Termination Notice in prescribed form. It is incumbent upon this Tribunal to assess that the Notice issued to the Tenant by the Landlord is properly as prescribed in law by Cap 301.

50. Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act states:

4. Termination of, and alteration of terms and conditions in, controlled tenancy

(2)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.

(4)No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party, as shall be specified therein:

Provided that—

(i) where notice is given of the termination of a controlled tenancy, the date of termination shall not be earlier than the earliest date on which, but for the provisions of this Act, the tenancy would have, or could have been, terminated;

(ii) where the terms and conditions of a controlled tenancy provide for a period of notice exceeding two months, that period shall be substituted for the said period of two months after the receipt of the tenancy notice;

(iii) the parties to the tenancy may agree in writing to any lesser period of notice.

51. There is no dispute as to the existence of the Termination Notice dated 13th May 2020 and supposed to take effect on 1st August 2020. It is in the wisdom of this Tribunal that the Termination Notice is properly in the prescribed manner. The grounds on which it is issued are also viable for the Landlord is obliged to comply with the statutory in the adverse alternative which she suffers an irreparable loss.

52. The deponent by the Tenant that impugned Notice was served to a wrong person are just mere tricks to deny the Landlady rights to the suit premise and to execute her statutory obligations. The same does not amount to technicalities that can vitiate the intentions of the said Termination Notice.

53. The tribunal has had advantage of taking into account the Notice and affidavit of the public health officer Nkaimurunya Ward Kajiado County read together with the SITE VISIT report of Zipporah Kipsang, Rent Inspector including the photographs tribunal notes shared concerns like lack of emergency access, Broken windows, dilapidated roof and drainage, falling and loose electrical wires, broken tables, hanging roof, dumpsite on the back, no running water, no ventilation in the kitchen, no refuse disposal, no discharge for waste water, stagnant dirty water behind the kitchen, full pit latrines and urinals, no septic tank, flies and foul smell. This place can best be described as a time bomb for disease outbreak and unsafe for continued human habitation.

54. Consequently, the upshot of this finding is that this Tribunal need not go into the merits of the tenant’s application dated 3rd March 2021 and reference dated 3rd March 2021 courtesy of which the tenant enjoys continued stay in the dilapidated premises via Interim orders issued on 3rd March 2021.

55. The same is therefore dismissed in its entirety and the Orders sought by the landlady in her application dated 3rd March 2021 and Amended on 15th March 2021are granted in terms of Prayers 4, 5, 6 and Prayers 7 and 9.

56. The Landlords Reference is spent in the circumstances and the Tenant is free to set down for hearing their reference dated 3rd March 2021in 30 days for what it’s worth failure to which it stands spent.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 27TH JULY, 2021in the presence of both theTenantand theLandlord.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL