Thuo v Ndungu [2022] KEBPRT 834 (KLR)

Thuo v Ndungu (Tribunal Case 16 of 2019) [2022] KEBPRT 834 (KLR) (2 November 2022) (Judgment)

Neutral citation: [2022] KEBPRT 834 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 16 of 2019

Gakuhi Chege, Vice Chair

November 2, 2022

Between

John Macharia Thuo

Applicant

and

George Njunge Ndungu

Respondent

Judgment

1. The landlord herein served a tenancy notice upon the tenant seeking to terminate his tenancy over a business premises situate at Methi Shopping Centre, Kabati with effect from August 1, 2019. The basis upon which termination is sought is that the landlord wishes to renovate the premises.

2. The tenant being opposed to the said notice filed a reference dated June 13, 2019 supported by an affidavit stating that he has been in occupation of the business premises on plot no 1541, Methi shopping Centre from August 2015 paying monthly rent of Kshs 5,000/- exclusive of electricity.

3. The tenant deposes that he had done investment and established business goodwill in the said premises and has built an extension thereof at a cost of Kshs 58,000/-.

4. It is the tenant’s case that the landlord has a known history of evicting tenants whose business seem to thrive and putting up the same business. He had opened the same business within 10 metres of the tenant’s business and hopes to take away his customers in case he manages to evict him.

5. The tenant complains that he has been picked out of nine other rooms for renovation which is malicious and discriminatory. In the month of June 2019, the hotel room occupied by the tenant was inspected by public health officers and certified fit for business and he was issued with a food hygiene licence without any recommendation for renovation. A copy of the licence is attached to the affidavit.

6. The reference is opposed by the landlord through his replying affidavit sworn on October 16, 2019 wherein it is disputed that the tenant has invested Kshs 58,000/- in the suit premises.

7. The landlord contends that the tenant has illegally been operating a hotel business instead of a retail shop as agreed and has been residing in the commercial unit with his family.

8. The landlord deposes that the tenant’s wife burnt down the rental unit endangering lives of other tenants while conducting hotel business in the suit premises.

9. The landlord says that he has received several complaints from other tenants that the applicant has been allowing his customers to use private washrooms meant for residential tenants only.

10. The landlord denies having had any problems with his previous tenants and states that he has no desire to take away the applicant’s customers.

11. The landlord denies being iminatory to the tenant as there are other tenants who have vacated their units.

12. The landlord states that the rental premises is not residential and the tenant has become a hazard to other tenants conducting business as his wife burnt part of the premises.

13. The landlord contends that he wishes to renovate the rental unit which is in a dilapidated and terrible condition and cannot attract better income for him as evidenced by annexure ‘GNN-1’.

14. The landlord accuses the tenant of illegally expanding the unit in his occupation without his authorization or by the County Government of Muranga which has caused problems with the latter.

15. The landlord accuses the tenant of failure to demolish his structure and demanding a 5 year lease. The landlord has annexed proposed plans for renovation of the subject units marked ‘GNN-2’ and ‘GNN-3’ being the approval from Muranga County Government.

16. The tenant filed a supplementary affidavit sworn on October 18, 2019. He annexes a photograph of the extension which cost him Kshs 58,000/- marked ‘GNN-1’.

17. The tenant denies that his hotel business is illegal as the same had been licensed for 2018 and 2019 by the County Government.

18. The tenant denies all the adverse allegations made against him in the replying affidavit. The tenant maintains that the landlord has only picked out his room for renovation as evidenced by annexure ‘JMT6’ and that no tenant had vacated and all other businesses as were operating normally.

19. The tenant contends that the date of approval of the plans to renovate and the date of meeting are questionable and far apart.

20. To demonstrate that the landlord is not genuine in his intention to remove him, the tenant refers to an illegal notice issued on December 24, 2018 which was based on the ground of fire requiring him to vacate by end of March 2019 and a second one dated March 5, 2019 on grounds of renovation. The notices are marked “JM7 10 and 11” respectively.

21. The issues for determination in this case are:-(a)Whether the landlord’s notice to terminate tenancy ought to be upheld or dismissed.(b)Who is liable to pay costs?

22. I have looked at the notice to terminate tenancy served upon the tenant and the date appears to be altered. Although it is expressed to have been issued on May 3, 2019, the tribunal stamp on the right hand corner shows it was paid for on May 15, 2019 which is 12 days after the date it was allegedly issued.

23. I have also read through the various affidavits exchanged between the parties ad it would appear that there are deep seated differences between the two parties which go beyond the reason given in the said notice for termination of tenancy.

24. Although the landlord contends that he intends to renovate the nine units to make them profitable, no other notice has been exhibited as having been served upon the other 8 tenants. The receipt for approval of renovation marked ‘GNN 2’ dated September 27, 2019 in the landlord’s name is for “renovation of single room”.

25. The various reasons given by the landlord contained in the landlord’s affidavit why he requires the tenant out of his premises reveal that the real intention is not to renovate the same but to remove him therefrom for unknown reasons.

26. In the case of Eldomart Holdings Limited v Ticket Company Limited [2019] eKLR at page 3/3, the superior court had the following to state:“The legislature left no doubt that the Act was enacted for the purposes of protecting tenants. The court must have the said objective in mind while interpreting the Act. The burden was upon the appellant to establish that it had an intention of occupying the suit premises for a period of not less than on year for the purposes of own business. In the case of Auto Engineering v Gonella [1978] eKLR 248 it was held that the onus is on the landlord to establish a firm and settled intention to occupy the suit premises”.

27. In the case of Auto Engineering Ltd v Gonella & Co Ltd [1978] eKLR the court cited the English case of Fisher v Taylors Furnishing Stores Ltd [1956] 2 Aller 78 at page 6/11 as follows:-“There must therefore be an intention and it must be an intention which in point of time is related to the termination of the current tenancy. It seems to me that the intention must be to do one of the following things:(i)to demolish the premises comprised in the holding or(ii)to reconstruct the premises comprised in the holding or(iii)to demolish a substantial part of the premises comprised in the holding or(iv)to reconstruct a substantial part of the premises comprised in the holding or(v)to carry out substantial work of construction on the holding or(vi)to carry out substantial work of construction on a part of the building.If the landlord prove an intention to do one of those things and to do it on the termination of the current tenancy, he must then prove that he could not reasonably do it without obtaining possession of the holding”.

28. I note that the documents relied upon by the landlord were all made after the filing of this case and I have reasons to suspect that the same were made to hoodwink this tribunal into believing that there was a genuine intention to undertake the renovations. By the time of issuing the notice, it would appear that no preparations had been made in respect of how it would be done.

29. When the landlord was directed to file evidence of availability of funds, the same was not forthcoming and I am afraid that he has not convinced me as a person who has a genuine intention to undertake the renovations.

30. It is therefore my firm view and holding that the landlord has not demonstrated a genuine intention to undertake the alleged renovations to warrant the tenant to give vacant possession of the suit premises.

31. As regards costs, the same are in the tribunal’s discretion under section 12(1) (k) of cap 301, laws of Kenya but always follow the event unless for good reasons otherwise ordered. I have no reason to deny the tenant costs.

32. The upshot of the foregoing analysis is that:-(i)The landlord’s notice to terminate tenancy is hereby declared to be of no effect and is hereby dismissed with costs.(ii)The tenant’s costs of the reference are assessed at Kshs 20,000/- against the landlord all inclusive.(iii)The said costs shall be offset against the rent account if not paid within thirty (30) days hereof.It is so ordered.

RULING DATED, SIGNED & VIRTUALLY DELIVERED THIS 2ND DAY OF NOVEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Wacheke Thindugua for the TenantNo appearance for the Landlord