Samuel Wanjohi Waihenya v Alice Njoki Gakwa & Edwin Humprey Kirori [2021] KEBPRT 412 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 50  OF 2020  (NYERI)

SAMUEL WANJOHI WAIHENYA.....................APPLICANT/TENANT

VERSUS

ALICE NJOKI GAKWA.............................RESPONDENT/LANDLORD

AND

SAMUEL WANJOHI WAIHENYA..................... APPLICANT/TENANT

VERSUS

EDWIN HUMPREY KIRORI.....................RESPONDENT/LANDLORD

JUDGMENT

1. Nyeri BPRT NO. 50 of 2020 was filed by the Tenant on 28th July 2020 against one ALICE NJOKI as the Landlady/Respondent complaining that the latter intended to evict him from the demised premises by giving verbal threats.  He also complains that the landlady has severally visited the premises and harassed him while he has promptly been paying rent.

2. On the other hand NYERI BPRT NO. 58 of 2020, was filed by  the Tenant against EDWIN HUMPREY KIRORI on 10th September 2020 to oppose a notice of termination of tenancy dated 20th August 2020 on grounds that “The lease was for 24 months from 30th August 2020 to July 2012 hence the lease has expired and the Tenant has been holding over”.

3. The second ground for termination is that “The Landlord intends to develop the land, it would be necessary for the  Tenant to vacate”.

4. The final ground is that “The Tenant refused to leave the area rented being a portion of soft X 50 ft out of L.R. AGUTHI/GITITU/694”.

5. Both References  were consolidated for hearing by consent.  The hearing proceeded  on 18th March 2021 with the Tenant testifying as pw1 while EDWIN HUMPREY KIRORI testified as DW1 and ALICE NJOKI GITAU as DW2.

6. The Tenant testified that he is a sawmiller on the demised premises.  He leased the premises in 2010 for 2 years until 2012.  The lease was not renewed after expiry but the Tenant continued to occupy after the mother of EDWIN came in 2012 and allowed him to continue occupying the premises and introduced him to ALICE as the new Landlord.

7. He started paying rent to the latter and has done so for the last 9 years.  He produced Mpesa statements as P.EXHIBIT 1 (a)-(c ) showing monthly payments of Kshs.15,000/-.

8. The tenant testified that he installed a 3 phase electricity supply, built shades and an operation area at the suit premises.  He also connected water.

9. The Tenant denies that EDWIN is his Landlord stating that no approved building plans were produced.  Equally no evidence of financial ability to develop has been demonstrated.

10. According to the Tenant, the developments effected by him on the demised premises have not been factored in the rent payable and he has been paying rent in full.

11. The Tenant in cross-examination stated that  EDWIN and ALICE are relatives which made him accept the latter as the new Landlord.

12. On his part Ediwn stated that the Applicant was his Tenant by agency in the plot owned by his mother.  He entered into a lease agreement with the Tenant on 30/8/2010 to 30/8/2012.

13. On 20/8/2020, Edwin issued a notice to terminate tenancy with effect from 1/11/2020.  He rehashed the grounds on the termination notice saying that he intended to put up residential and office premises.

14. In cross-examination, Edwin confirmed that the premises known as L.R. NO. AGUTHI/GATITU/1694 is registered to his mother one MARGARET WAMBUI KIRORI who is out of the country.

15. He confirmed receiving rent for two (2) years but did not renew the lease neither did he give notice to the Tenant to vacate.  He also confirmed that ALICE was introduced by his mother to  the Tenant  in 2012 as the new agent for purposes of rent payment.  At no time was the premises given back to  Edwin to manage.

16. No power of attorney or other authority was given to Edwin to issue the notice to terminate tenancy.  Edwin however confirmed the improvements made  by the Tenant on  the demised premises.

17. It was confirmed by Edwin that ALICE collects rent from the demised premises on behalf of their mother.

18. On her part ALICE denied being the Landlady in respect of the demised premises though she has been collecting rent on behalf of her sister one MARGARET WAMBUI KIRORI who is outside the country.  All other affairs are performed by EDWIN.

19. According to ALICE, she went to the demised premises to inform the Tenant that the Land owner wanted to develop the property and it was agreed to give him 6 months.

20. The Tenant according to ALICE later reneged on the agreement as a result of which Edwin was advised to issue notice to terminate tenancy on the ground that the Landowner and children intended to develop the land.

21. In cross-examination, ALICE confirmed that she was the one who has been collecting rent since 2013.  Neither her nor Edwin had been given power of attorney.

22. She admitted visiting the suit premises 3 times and at one time she was accompanied by a surveyor.  The Land measures 2 ½ acres and the Tenant occupied only ¼ acre.  No termination notice has been issued by the Landowner yet.

23. After conclusion of the hearing, it was agreed that both parties would file submissions.  Only the Tenant/Applicant filed submissions.

24. I have considered the pleadings, evidence and the Tenant’s submissions and in my view, the only two issues for determination is whether the Reference ought to be allowed or not and who is liable to pay costs.

25. Based on my foregoing analysis of evidence, I make the following findings:-

i. The Tenant is a month to month tenant having held over after the 2 years lease expired.

ii. Edwin was only entitled to issue notice during the currency of the 2 years lease and not thereafter.

iii. The notice of termination of tenancy dated 20th August 2020 is defective for having been issued by someone who had no capacity to issue the same.

iv. No evidence was tendered to prove the purported proposal to develop the property.

v. There is no evidence of harassment of the Tenant by ALICE NJOKI GIKWA as her visits to the demised premises were routine visits made pursuant to her mandate as the agent of MARGARET WAMBUI KIRORI (LANDOWNER).

vi. The Landowner or her rent collecting agent is the only person entitled to issue notice under section 2 of Cap. 301, Laws of Kenya.

26. The upshot of my above findings is that the Tenant’s claim in NYERI BPRT NO. 50 of 2020 lacks merit and is hereby dismissed with no orders as to costs while the claim in NYERI BPRT NO. 58 OF 2020 succeeds and the notice of termination of tenancy dated 20th August 2020 is struck out for being invalid,  null and void.  There shall be no orders on costs’ in order to a foster harmonious relationship between the parties.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 16TH DAY OF JULY,2021

HON. CHEGE GAKUHI

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

N/A