REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAKURU

ELC APPEAL NO.  E21 OF 2021

JOHN MWANGI KARANJA..........................................APPELLANT

VERSUS

SUSAN KIPRONO..................................................1^ST RESPONDENT

ISABELLA KIPRONO..........................................2^ND RESPONDENT

CAROLINE KIPRONO.........................................3^RD RESPONDENT

JUDGEMENT

INTRODUCTION

1. This Appeal arises from the decision of the Business Premises Rent Tribunal (herein after referred to as The Tribunal) terminating the Appellant’s tenancy on the premises situated at LR. No. 4/273 Kenya Industrial Estates Shabaab in Nakuru (herein after referred to as the suit premises).

2. The Tribunal’s decision was rendered by Honourable P. May (Vice Chair) on 16^th July, 2021.

3. The Appellant/Tenant is represented by Learned Counsel, Mr. Simiyu. The Respondent/Landlord is represented by Learned Counsel Mr. Ikua.

4. By a memorandum of Appeal dated 27^th October, 2021 and filed on 2^nd November, 2021, the Appellant appealed the tribunal’s decision on the grounds that:

a) The Learned Trial Magistrate (sic) erred in law and in fact when she held that the Appellant was given termination of lease notice.

b) The Learned Trial Magistrate (sic) erred in law and in fact when she held that the Appellant did not seek permission from the Respondents before subletting the premises.

c) The Learned Trial Magistrate (sic) erred in law and in fact when she failed to interrogate the documents produced by the Appellant.

5. Thus the Appellant has sought the following orders:

a. That the Judgment of the Honourable Chair (sic) delivered on 16^th July, 2021 be set aside and the Appellant’s Appeal be allowed.

b. That the cost of the Appeal be borne by the Respondent.

FACTUAL BACKGROUND

6. An Application was filed before the tribunal seeking orders of eviction against the tenant, to allow the Landlord engage an auctioneer to break into the suit premises and levy distress on the tenant’s property so as to recover part of the arrears accruing in respect of rent.

7. The application sought orders that the OCS Kaptembwo Police station ensures compliance and that peace prevails for failure to pay rent amounting to kshs. 180,000.

8. The application had four grounds. Two of them were that:

a. The tenant had failed to file a reference in opposition to the notice of termination of tenancy issued on 3^rd January,2020 which became effective from 1^st February, 2020.

b. That the tenant had defaulted in paying rent for a period of 9 months and that the arrears amount to Kshs. 180,000.

9. The tenant filed a response to the said application stating that:

a. He rented an open ground business premises from the family of one Daniel Kikwai at a monthly rent of Kshs 35,000

b. He developed the premises.

c. The Landlords visited him to have discussions on subletting the premises to one Justus Mutinda.

d. That the Landlords then asked Justus Mutinda to stop paying rent to the tenant and gave him an alternative account number.

e. The Tenant filed a case BPRT No. 146/2019 and obtained orders allowing him to continue receiving rent from Justus Mutinda.

f.  The landlord has continued to defy these orders.

g. He has no rent areas.

h. The suit be dismissed with cost to him

10.  The Tribunal delivered its Judgment on 6^th July, 2021 and this Appeal is in respect of the said Judgment.

11.  Counsel agreed to canvas the Appeal by way of written   submissions which were duly filed.

THE APPELLANT’S CASE.

12. The first ground of Appeal is that the notice of termination of lease was not issued to the Appellant and that the Learned Vice chair of The Tribunal erred in finding so.

13.  The Appellant submits further that the notice period is 3 months and that there was no affidavit of service filed in respect of the termination notice.

14.  The Appellant states that it is not true that the Appellant was served through his last known postal address adding that the telephone number on the notice is also wrong.

15.  The Appellant further submits that the confusion might have arisen because the Respondent’s were not the Appellant’s initial landlord.

16.  The second ground of Appeal is that the Learned Vice Chair of the tribunal erred in law and in fact in finding that the Appellant did not seek permission from the Respondents before subletting the suit premises. The Appellant has not submitted on this ground.

17.   The third ground of Appeal is that the Learned Vice Chair of the tribunal erred in law and in fact in failing to interrogate the documents produced by the Appellant. The Appellant has not made any submissions on this ground.

18.    The Appellant ends his submissions by praying that his Appeal be allowed in terms that the landlord be ordered to serve the notice of termination afresh.

THE RESPONDENT’S CASE.

19.   On the first ground, the Respondent submits that one of the Landlords, Susan Kiprono swore an affidavit and deposed to having issued the Appellant with a notice to terminate tenancy dated 3^rd November, 2019 and the same was to take effect as from 1^st February, 2020. It is submitted that a copy of the notice was annexed to the affidavit and was considered by the tribunal and found to be valid.

20.   The Respondent submits that The Tribunal relied on section 4 (2) (4) and (5) of the Landlord and Tenant ( Shops Hotels and Catering Establishments Act (CAP 301).

21.   It is submitted that the tribunal after perusal of the notice found that it satisfied the requirements of the law i.e. that it was in the prescribed form, was to take effect two months from the date of receipt and that it specified the grounds upon which the termination was sought.

22.   On the second ground of Appeal, the Respondent submits that the finding that the Appellant did not seek permission from the Respondents before subletting was arrived at after a proper consideration of the evidence on record. The Respondent relied on the deposition by 1^st Respondent Landlady that at the time of taking over the management of the suit premises after their appointment as the administrators of the estate of Moses Keino, the Appellant had unlawfully sublet the suit premises to one Justus Mutinda.

23.   The Respondents submit that the Appellant has alleged that he had authority to sublet and that he did not produce documentary evidence to support this assertion. The Respondents relies on the provisions of Section 107 (1) of the Evidence Act and the judicial decision in Evans Otieno Nyakwana vs. Cleophas Bwana Ongaro [2015] eKLR. It is their submission that he who alleges must prove.

24.  On the third ground of Appeal, the Respondents submits that this is a very serious allegation which should be disregarded. The Respondents submit that this allegation is being made to change the course of justice and manipulate the court towards a certain outcome.

25.  In conclusion, the Respondents submit that the Appeal is not merited and urges the court to dismiss it.

ANALYSIS AND DETERMINATION.

26.  I have considered the reference before the Tribunal, the evidence tendered before it, the judgment of the Tribunal, the grounds of Appeal in this Appeal and the rival submissions filed in respect of this Appeal. I have also considered the relevant statutes and jurisprudence on the key issues in this Appeal.

27.  This being a first Appeal, this court is required to re-evaluate the evidence tendered before the Tribunal and make its own findings and conclusion.

28.  On the first ground of Appeal, it is not in dispute that the notice of termination was in compliance with the provisions of the Landlord and Tenant (Shops Hotels and Catering Establishments Act (CAP 301) to the extent that it was in the prescribed form, was to take effect two months from the date of, and that it specified the grounds upon which the termination was sought.

29.  What is in dispute, however, is the fact of service of the notice upon the Appellant. I have perused the proceedings and the documents forming part of the record of Appeal and I have not seen an affidavit of service in respect of the said notice of termination. I have also not seen any mention in the proceedings that the tribunal was satisfied that the termination notice had actually been served on the Tenant. The Judgment of the Tribunal only makes reference to the fact that the notice satisfies the requirements in section 4 Cap 301.

30.  Section 4 (1) and (2) of the Landlord and Tenant (Shops Hotels and Catering Establishments Act (CAP 301) provides:

(1) Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with the following provisions of this Act.

 (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. ” (Emphasis is mine)

31.  There is no doubt that giving of notice to a tenant is an integral part of the legal provision. Section 4 (6)  of Cap 301 goes on to provide as follows:

A tenancy notice may be given to the receiving party by delivering it to him personally, or to an adult member of his family, or to any other servant residing  within or employed in the premises concerned, or to his employer, or by sending it by prepaid registered post to his last known address, and any such notice shall be deemed to have been given on the date on which it was so delivered, or on the date of the postal receipt given by a person receiving the letter from the postal authorities, as the case may be.

32.  In my view, the only way to establish the giving of this notice is by the Landlord filing an affidavit of service and the tribunal satisfying itself that the modes prescribed in section 4(6) were employed.

33.  It is only on the receipt of this termination notice that a tenant might be able to invoke the provisions pertaining to filing of a reference or vacating at the end on the notice period. Proof of service of the termination notice is therefore of paramount importance especially if orders of eviction are to be granted.

34.  The Appellant maintains that he was not served with the termination notice and therefore could not file a reference in respect of the termination notice.

35.  There is, obviously, a procedural flaw and the Respondents/Landlords cannot therefore enjoy eviction orders which were issues on account of it. The Tribunal failed to interrogate the question of service of the termination notice upon the Appellant and did not comment on it.

36.  In the absence of the affidavit of service in respect of the termination notice or an endorsement in the record of the tribunal that it was satisfied that the termination notice had indeed been served upon the Appellant, I am unable to make a finding that the Respondent had notice of termination of the tenancy. Invariably, the Learned Vice Chair of the tribunal erred in issuing orders for eviction against the Appellant without proof of service.

37.  The second ground of Appeal relates to a finding that the Appellant/ Tenant failed to obtain permission from the Landlord before subletting the suit premises.  The tribunal found that the Appellant/Tenant was in breach of terms of the controlled tenancy.

38. The Learned Vice Chair of the Tribunal in his Judgement made reference to the schedule to the Act. It provides for terms and conditions to be implied in tenancies. One of the implied terms and conditions at (xii) is that:

The lessee shall not transfer, part with possession, or sublet the premises or any part thereof without the consent of the lessor, which consent shall not be unreasonably withheld.

39.  A Controlled Tenancy is defined under section 2(1) (a) of the Act as follows:

i.   Which has not been reduced into writing; or

ii.  Which has been reduced to writing and which-

a. is for a period not exceeding five years; or

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

c. Relates to premises of a class specified under subsection (2) of this section.

40.  It is not clear from the record, the circumstances that qualified the Tenant as a controlled tenant. What is clear, however, is that there is no written agreement between the Tenant/Appellant and the Landlord/Respondent, or at least non was produced.

41.  I also note from the documents forming part of the record of Appeal that the Appellant/Tenant had previously filed a suit before the Tribunal as tribunal case No. 146/2019 to resolve the question of payment of rent by the sub-tenant to the Appellant herein. The order of the tribunal was that the sub-tenant continues to pay the rent to the Appellant pending the hearing and determination of the application inter partes.

42. Subsequently, the sub-tenant entered into an independent tenancy agreement with the Respondents herein and has also filed an affidavit stating that he is not a sub- tenant of the Appellant/Tenant herein. He deposes that this independent agreement came into force in October, 2019.

43. I am not convinced that there was breach on the part of the Appellant /Tenant especially in light of the fact that the Initial Landlord never complained of this breach.  One of the qualifications for a tenancy to be regarded as a controlled tenancy is the fact that it has not been reduced into writing, had it been, nothing would have been easier than the Respondents availing the copy of the tenancy agreement and the terms of it so as to be sure that the Appellant was in breach.

44. The tribunal found that the Appellant was not able to prove that he got consent from the Landlords to sublet. The Tribunal makes reference to the decision in New Calabash Limited Vs Joseph Odero [2018] EKLR. In this decision the court, indeed, found that the Tenant was in breach of the terms of the controlled tenancy by sub-letting the premises without consent. The distinction, however, is that this finding was reached because the tenancy agreement was in writing and contained an express provision prohibiting sub-letting. The circumstances in the present Appeal are different.

45. In the absence of a written agreement, it is logical to deduce that the Appellant may or may not have had permission to sublet.  This is a classic case of one person’s word against that of another.  The Appellant says that he had this permission from the Initial Landlord, the Respondents denies. There is nothing in the judgement of the Tribunal to explain why it chose to believe the testimony of the Landlord and not that of the Tenant.

46. The Evidence Act section 199 allows the court to make certain presumptions.

The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

47. It is logical to presume that the dealings between the Appellant and the initial Landlord were oral in nature. There might not be any proof as to what was agreed between the Appellant and the former Landlord beyond what the Appellant has deposed. The other party to the agreement is deceased. The Respondents have also not produced evidence contrary to the deposition by the Appellant that the initial landlord permitted him to sublet.

48. Where a tenancy is not in writing like in the present case, the intention of the parties remains a mystery. Importantly, the law protects such a tenant. The mischief that the law is curing can be traced back to the period in history that the statute was enacted. In 1965, the circumstances were that not too many Kenyans had benefited from formal education, they could not read and/or write. The Landlords on the other hand, were mostly the affluent members of society. In order to protect tenants, such tenancy could only be terminated by obtaining a court order and it was expected that the court would only issue such order after hearing the tenant.

49. In my view, the schedule at xii requires that the tenant seeks consent before subletting and that this consent when sought shall not be unreasonably withheld.

50. The purpose for the enactment of Cap 301 is that it is:

An Act of Parliament to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto.

51.  Keeping the spirit and letter of this law in mind, in my view, subletting should not, per se, be not a ground for termination of tenancy.  Instead, the tenant should be allowed to purge the breach either by obtaining consent or ceasing to sublet.  This consent, the Act states, should not be unreasonably withheld.

52. In view of the foregoing, I find that the Learned Vice Chair of The Tribunal erred in finding that the Appellant was in breach of the terms of the controlled tenancy by subletting.

53. On the third ground of Appeal, the Appellant observes that the learned Vice Chair of the tribunal erred in law and in fact when he failed to interrogate the documents produced by the Appellant. The Appellant has not submitted on this point. The Respondent states that it is a serious allegation and that the Appellant should be put to task to prove it.

54. I am unable to make sense of this ground of Appeal as it is not substantiated. I will therefore not address it.

55. On costs, I am guided by the provisions of Section 27 (1) of the Civil Procedure Act (Cap 21) and the decision in Jasbir Singh Rai & 3 others Vs Tarlochan Singh Rai & 4 others SC. Petition No. 4 of 2012: [2014] eKLR. The Supreme Court held that costs follow the event and that the Court has the discretion in awarding such costs.

DISPOSITION

56. In United India Insurance Co. Ltd Vs East African Underwriters (Kenya) Ltd [1985] EA 898 it was held that:

“The Court of Appeal will not interfere with a discretionary decision of the Judge Appealed from simply on the ground that its members, if sitting as at first instance, would or might have given different weight to that given by the Judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first that the Judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of consideration of which he should have taken account of; or fifthly, that his decision albeit a discretionary one is plainly wrong.”

57. For the foregoing reasons, I find the Appeal herein merited. Consequently, I grant orders as follows:

a. The Appeal is allowed and the Judgement of the Tribunal delivered on 16^th July, 2021 is set aside.

b. Each party shall each bear its own costs in the instant Appeal and costs in the proceedings before the Tribunal.

c. The Respondent is at liberty to serve a fresh notice of termination in compliance with the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenya.

58.       It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 24^TH DAY OF MARCH, 2022.

L. A. OMOLLO

JUDGE

In the presence of: -

 Mr. Simiyu for the Appellant

Mr. Ikua for the Respondents

Court Assistant; Jeniffer