Waihenya v Kirori [2024] KEBPRT 90 (KLR)

Waihenya v Kirori (Tribunal Case E144 of 2022) [2024] KEBPRT 90 (KLR) (Civ) (12 January 2024) (Judgment)

Neutral citation: [2024] KEBPRT 90 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E144 of 2022

Gakuhi Chege, Chair & J Osodo, Member

January 12, 2024

Between

Samuel Wanjohi Waihenya

Tenant

and

Margaret Flashia Wambui Kirori

Landlord

Judgment

1. The Landlord herein served a tenancy notice dated 24th November 2022 seeking to terminate the tenant’s tenancy over premises situate on LR No. Aguthi/Gatitu/1694 with effect from 1st February 2023. The grounds for termination of the tenancy is that the Landlord intends to develop the premises into residential premises.

2. Being opposed to the notice, the tenant filed a reference dated 8th December 2022. On 24/1/2023, this Tribunal directed both parties to comply with Order 11 of the Civil Procedure Rules within 30 days thereof.

3. In compliance with the directions, the Landlord filed witnesses statements by Alice Njoki Gakwa and Edwin Kirori together with a list of documents dated 3rd April 2023. On the other hand, the tenant filed a witness statement dated 8th May 2023. The landlord subsequently filed a supplementary list of documents dated 10th November 2023.

4. The matter proceeded on 22nd November 2023 in absence of the tenant and his counsel who were duly notified of the hearing date in terms of the affidavit of service on record however only one witness for the Landlord namely Edwin Kirori testified in support of the case.

5. We are required to determine the following issues in this matter:-a.Whether the landlord’s tenancy notice ought to be approved or declared to be of no effect.b.Who is liable to pay costs of the reference?

6. The landlord’s witness adopted the written submissions filed in this case together with the documents contained in the lists dated 3rd April 2023 and 10th November 2023. Edwin Kirori is a son of the Landlord herein one Margaret Flashia Wambui Kirori. He testified that he is mandated and authorized to manage all the family properties by his mother who is of advanced age.

7. He testified that as a family, they were desirous of developing the suit property into a two storeyed commercial building with 10 stalls on the ground floor, 10 on the first floor and a food court on the top floor. Approved architectural plans had already been obtained for the said development.

8. The family had many other prime properties in Nairobi, Nakuru and various parts of Kenya whose rental income would be utilized to develop the suit property. The witness listed 9 other properties occupied by tenants situate on LR No.2/35, old Donholm Estate and LR No. Aguthi/Gatitu/2960 and 2966 as the source of income intended to be used for the proposed development on the suit property.

9. There was understanding between the tenant and the Landlord that when the time comes for development of the suit property, he would handover and cede possession. It is on that understanding that the Landlord agreed to lease an additional 3000 feet to make 6000 square feet at a monthly rent of Kshs.15,000/-. The tenant encroached on an additional 4000 square feet to make altogether 10,000 square feet without the landlord’s authority.

10. The documents produced by the witness includes architectural plans and maps, tenancy agreements with third parties, Mpesa statements to prove cash flow, copy of requirements for application for development permission, application for change of user from agricultural to commercial cum residential dated 7/9/2023, official receipt dated 29th August 2023 for Kshs.69,317/- from County Government of Nyeri, notification of approval of development application dated 5th October 2023, construction permit from County Government of Nyeri dated 6/10/2023 and approved blue prints.

11. Although the tenant states that he will suffer prejudice if the tenancy notice is allowed as he will be forced to migrate with his heavy lumbering machines to a place which he was yet to identify which would occasion him great loss of customers.

12. According to the tenant, the tenancy notice was not predicated on good faith and is solely meant to harass him and destabilize his business. He pleads that the landlord has not met the requirements of evicting him.

13. It is the tenant’s case that the landlord has not furnished the court with bank statements to prove that he has funds to commence and complete the proposed building. The purported Structural/Architectural plan has no approval stamps or the land parcel number. The landlord had two other undeveloped plots adjacent to the suit property and according to the tenant, the landlord has not explained why he cannot start developments on the said plots.

14. We have considered the evidence by the landlord and in particular the provisions of Section 4(2) of Cap. 301, Laws of Kenya and noted that the same is in compliance thereof. It is also for the stipulated period of 2 months under Section 4(4) and 4(5) of the said Act.

15. Section 7(1) (f) of the said Act inter-alia provides one of the grounds of termination of tenancy to be that on termination thereof, the landlord intends to carry out substantial work of construction on such premises or part thereof and that he cannot reasonably carry out the same without obtaining possession.

16. Proof in civil cases is on a balance of probabilities. The standard of proof was discussed in the case of William Kabogo Gitau v George Thuo & 2others (2015) eKLR where it was held as follows:-“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is more probable than not that the allegations that he made occurred”.(see also the case of Palace Investment Ltd v Geofffrey Kariuki Mwenda & Another (2015) eKLR.

17. In the instant case, the landlord served notice of termination of tenancy on the basis that she intends to develop the suit property into residential premises. The landlord tendered documents to prove that she has a genuine and settled intention to undertake the development including approvals and payment for Architectural plans and drawings by the County Government of Nyeri. She has produced documents to show her source of funds to effect the proposed developments. The Mpesa statement marked exhibit 12 shows that the landlord has a constant source of funds. We find and hold that it is not mandatory that the landlord has to produce bank statements to show ability to undertake the development.

18. We find and hold that the documents relied upon by the landlord constitute sufficient evidence of her genuine and settled intention to undertake the developments. The tenant’s argument that the Architectural drawings are not stamped by the County Government have been countered by the documents attached to the landlord’s supplementary list of documents dated 10/11/2023 which include a notification of approval of development application and payment receipt thereof.

19. As regards the argument that the landlord has other vacant land parcels near the suit premises, no evidence has been availed by the tenant by way of certificates of official search or photographic evidence of the same. In any event, it is not for the tenant to determine which land parcel the landlord ought to develop as the relationship between them is not permanent.

20. We therefore find and hold that the landlord has ably demonstrated her genuine and settled desire to develop the suit premises which cannot be undertaken whilst the tenant remains in possession. We therefore approve the tenancy notice dated 24th November 2022. The tenant has had more than one (1) year to look for alternative premises to transfer his business and cannot be heard to seek for more time to do so.

21. As regards costs, the same are at the discretion of this Tribunal under 12(1) (k) of Cap. 301, Laws of Kenya but always follow the event unless for good reasons otherwise ordered. We have no reason to deny costs of the reference to the Landlord.

22. In conclusion, the following final orders commend to us in this matter under Section 9(1) of Cap 301, Laws of Kenya:-a.The landlord’s notice to terminate the tenant’s tenancy over LR No. Aguthi/Gatitu/1694 dated 24th November 2022 is hereby approved.b.The tenant is ordered to deliver vacant possession of the suit premises and in default shall be evicted therefrom by a licensed Auctioneer who shall be provided with security by the OCS of the police station within whose jurisdiction the premises are situate.c.The tenant shall pay costs of Kshs.50,000/- for this Reference to the landlord.It is so ordered.

JUDGMENT DATED, SIGNED AND DELIVERED THIS 12TH DAY OF JANUARY 2024. HON. GAKUHI CHEGE PANEL - CHAIRPERSONHON. JOYCE OSODO - MEMBERBUSINESS PREMISES RENT TRIBUNALJudgement delivered in the presence of:-Makura for the TenantNo appearance for the Landlord