Simon Wahome t/a Peni Ltd v Simon Waweru Macharia [2019] KEBPRT 15 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. 22 OF 2017 (NAIVASHA)

SIMON WAHOME T/A PENI LTD...........................TENANT

VERSUS

SIMON WAWERU MACHARIA.........................LANDLORD

JUDGEMENT

The Landlord/Respondent in the above reference by a notice dated 28th August 2017 sought to terminate the tenancy of the Tenant/Applicant with effect from 1st December 2017on the following ground;

“I want to occupy the premises for my own use for a period of not less than one year.”

The Tenant did not wish to comply with the Landlord’s notice and filed the reference in the Tribunal under section 6 of Cap 301. The parties to the reference have given evidence before the Tribunal and the advocate of the parties have filed written submissions which are on record and which the Tribunal has read in details.

The mandate of the Tribunal now is to evaluate the evidence on record in the light of the provisions of section 7 of Cap 301 and make an appropriate determination of the reference under section 9 of Cap 301.

Summary of the Landlord’s Case

The Landlord Simon Waweru Macharia testified as hereunder;

That he is the Landlord in the reference. That he served the Tenant with the notice dated 28th September 2018. That he is the deponent of the affidavit sworn on 16th January 2018. That he adopted his affidavit and all the annextures thereto as part of his evidence before the Tribunal.

That he is the owner of plot Number 1144/515 Naivasha. That he has started a company known as East Gate Merchants Ltd. The company sells water. That he needs a depot and/or store for the water. The company is based at Industrial Area Naivasha. That the suit premises is in Naivasha Town. That he has no written tenancy agreement with the Tenant. That him and the Tenant are friends.

That the Tenant has a wines and spirit shop in the premises. The Tenant also has a residential room in the suit premises. The monthly rent for the shop is shs 25000. The rent for the residential room is shs 15,000/-. The Tenant has not paid rent for the residential premises from 2004. That the relationship between him and the Tenant is not good. That the Tenant has been abusing him. That the Tenant has called him a dog. That the company pays VAT.

That he has the resources to start the business. The Landlord produced Bank statement which showed that as at 3rd January 2018 he had a credit balance of shs 446,350. 75. The bank statement is from his bank account. That he has no grudge against the Tenant. He prayed for an order of vacant possession of the suit premises.

The Landlord was cross-examined by the advocates for the Tenant Mr Thuita and gave the following further statements;

That he has known the Tenant for about 15 years. The Tenant met him at Naivasha. That he has been at Naivasha from 1976. That he is a businessman. That he has another one storey building. That he also owns three ways bar, lodging which is a two storey building. The property occupied by the Tenant is known as Ochards. That the suit premises is a 2 storey building. There is a bar and restaurant upstairs called Orchards. There are lodgings upstairs. There are about 39 rooms. There are 4 shops on the ground floor. There is a clothes shop. The clothes shop and the Tenant’s shop are not of the same size.

He stated that the Tenant’s shop is more convenient for storage of his business. The Tenant has another shop in the neighbourhood. The Tenant’s shop is a big shop. That he does not know how the Tenant used the rear room. The Tenant does not pay rent regularly. That from Industrial Area to the suit premises is about 1 ½ kilometers. That he has been selling water for the last 2 years. That he was licensed to sell water around August 2017. His customers are getting water from his hotel (three ways).

That he has a lorry which distributed water to other customers. There he needs a depot where his customers and distributors can access the water. That he has a right to choose which building and/or shop is more convenient.

Summary of the Tenant’s Case;

The Tenant Simon Wahome Gitonga Testified as Hereunder;

That he is the Tenant/Applicant in the reference. That he is the deponent of the replying affidavit sworn on 23rd January 2018. That he adopted his affidavit as part of his evidence before the Tribunal. That he operates the business of a wines and spirit shop in the suit premises. It is a wholesale shop. The business is known as Peni Wines and Spirits. That he has known the Landlord from 1988. That he became a Tenant in the suit premises from 1994. The Landlord became the owner in 2004. The Landlord put a mabati hoarding around the premises.

The Tenant vacated the premises for 6 months to enable the Landlord to carry out the renovations. That he has no written tenancy agreement with the Landlord. That he occupied a shop and a room upstairs. The shop is on the front ground floor.

The suit premises is situated along Kariuki Chotara Road. The other room is on the 1st floor. That the Landlord used to occupy the room on the 1st floor up to 2010. That the monthly rent is shs 25000/-. The rent is for the shop and the upstairs room. That the Landlord has been demanding the rent of shs 15,000/- for the upstairs room.

There is a hotel in the premises (Smiles Hotel) and the rent in respect of the same is shs 25,000. There is an mpesa shop and the rent for the same is shs 10,000/-. There is also a clothes shop and the Tenant pays a monthly rent of shs 18,000/-. That the Landlord has several buildings in Naivasha.

That the Landlord’s company East Gate Ltd has a factory near Delamere Fly Over. That he differed with the Landlord in May 2012 at his bar and he threatened to evict him from the suit premises. That he pays rent regularly. That the Landlord has many buildings which he can use. That he now parks inside the premises.

The Tenant was cross-examined by Mr Aunga for the Landlord and he made the following further statement;

That he is not willing to vacate the premises. That the Landlord is his friend. That he is willing to stay in the premises.

That he does not know whether the Landlord has a right to choose which of his premises to use for his business. That the Tenant has been in the premises for the last 26 years.

Evaluation of the Evidence

The Tribunal upon consideration of the evidence on record, the affidavits of the parties and all annextures thereto and the written submissions of the advocates of the parties makes the following findings;

1. The ground of termination of tenancy relied on by the Landlord is provided for in section 7 (1) which provides ad hereunder;

“Subject as hereinafter provided, that on the termination of the Tenancy the Landlord himself intends to occupy for a period of not less than one year the premises comprised in the tenancy for the purposes or partly for the purposes of a business to be carried on by him therein or as his residence.”

The evidence on record establishes that the Landlord has a factory for bottling water and wants to use the said premises as a depot for water for his customers and distributors.

2. The evidence on record and which the Tenant confirmed is that the Landlord is a man of resources and has many other buildings. The Tribunal is therefore satisfied on the evidence on record that the Landlord has the means and the capacity to establish a depot in the suit premises.

3. The only issue in contention in the matter is whether the Landlord’s notice was issued in good faith. The Tribunal observed the demeanor of the Landlord as he gave evidence and the Landlord impressed the Tribunal as a mature entrepreneur who has a firm and genuine intention to use the suit premises as a depot. The Landlord and the Tenant admitted that they have their own differences but remain friends.

4. The Tenant has been in the suit premises for the last 26 years. The Landlord has a right to choose which of his properties is more strategic for his intended business. The Landlord has satisfied the Tribunal that he has a genuine and firm intention to use the suit premises and he has sufficient resources.

The Tribunal is also satisfied that the Tenant needs reasonable time to relocate his business.

All in all, the Tribunal is satisfied that the Landlord has proved his notice on a balance of probabilities. The Tribunal makes the following orders;

1. The Tenant’s reference dated 9th November 2017 and filed in the Tribunal on 13th November 2017 is hereby dismissed.

2. The Landlord’s notice dated 28th September 2017 is allowed.

3. The Tenant shall vacate and hand over vacant possession of the suit premises on or before 1st April 2020 in default an eviction order shall issue without further reference to the Tribunal.

4. In the circumstances of this case, each party shall bear its own costs.

Judgement delivered this 20th day of September 2019 in the presence of Waweru holding brief for Thuita for the Tenant. Advocate for the Landlord absent. Landlord absent. Tenant absent.

MBICHI MBOROKI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL