The Plaintiff’s evidence
7.PW1, Bonventure Mwangi Njoga, the Plaintiff, testified on 4th February 2020. His witness statement filed on 27th September 2017 was adopted as part of his evidence in chief. He told the court that the Defendant was a tenant is shop no.1 and that he got eviction orders against her and she left shop no.1 but refused to vacate shop no.3.He added that the Defendant did not enter shop no.3 with his permission. He further stated that he realized that the Defendant was in possession of the shop when he wanted to sue the previous tenant one Joseph Wahome. He asked her to leave through a demand notice and she replied through her advocates. He also stated that he wants to use the said shop for his business and he has bought all the machines and paid all the licenses required to undertake knitting and embroidery business. He refuted claims to having sold the premises to someone else.
8.When he was referred to the agreement dated 29th November 2014 handing over the shop to the Defendant from the previous tenant Joseph Wahome, he stated that he did not take part in the negotiations. In reference to the letter dated 23rd May 2014 addressed to Joseph Wahome by Sedco Consultants Limited stating that Sedco Consultants Limited had no objection to his intention to vacate shop no.3 and requesting him to advise the tenant interested in the said shop to contact their offices, he stated that the letter was copied to him. He was referred to the letter dated 1st March 2016 in which the local administration mediated the conflict over ownership of the suit premises between Joseph Wahome, the Defendant and his agents, he stated that he was not involved in the said negotiations. He stated that he did not see the Defendant’s letter dated 24th March 2016 addressed to Sedco Consultants Limited and that at the time, the matter was in court. He added that the letter dated 18th April 2016 addressed to Sedco Consultants Limited from the Plaintiff’s Advocates refers to the lease between the Plaintiff and Joseph Wahome yet the lease does not provide for subletting /sale of the premises without a written consent as per paragraph (h) of the lease. He stated that the lease for shop no.1 was properly terminated. He also stated that in 2017 when he refused to accept the rent, the Business Premises Rent Tribunal compelled him to accept the rent. He prayed for mesne profits, damages for trespass plus costs of the suit.
9.When cross-examined, he stated that Sedco were his agents for purposes of collecting rent. When referred to the letter dated 25th August 2015 addressed by Sedco Consultants to the Defendant advising that her tenancy had expired and offering a 6 year term renewal, he stated that Sedco has been his agents for some time. He stated that the Defendant paid rent for shop no.1 to Sedco Consultants Limited. He stated that the previous tenant Joseph Wahome desired to vacate. When referred to the letter dated 23rd May 2014 addressed to Joseph Wahome by Sedco Consultants stating, “Advise the tenant interested to contact our offices” he stated that the said letter is copied to him. He also stated that he is not aware of the agreement between Joseph Wahome and the Defendant in the offices of Sedco Consultants. He added that he continued to receive rent from Wahome on account of shop No,3 until he realized there was someone else in that shop. He stated that Sedco wrote to the Defendant the letter dated 25th August 2015 advising her that her tenancy had expired and offering a 6 year term renewal. He stated that the rent paid by Joseph Wahome was kshs.13,000/= before the increment. It is now kshs.13,500/=.
10.He told the court that he did not enter into six (6) year lease with the Defendant but she has continued to be in the premises. He further stated that he has not sued Sedco Consultants Limited but the 1st Defendant deposits rent to them without his consent. He also stated that Joseph Wahome stopped paying rent sometime in 2016 so he sued Wahome vide Tribunal Case 294 of 2017 at the business Premises Rent Tribunal and got orders to distress for rent but the Defendant herein filed an objection in Misc.151 of 2017 and claimed that the items distressed from shop no.3 which were tyres belonged to her and the court ordered the items to be returned to the Defendant.
11.On re-examination, he stated that the Defendant went to the Tribunal to stop her eviction from shop no. 1 but she did not succeed and she filed an appeal vide ELCA 2 of 2019 which was also dismissed and she was ordered to vacate. He further stated that Joseph Wahome was not allowed to sublet. He also stated that the Defendant paid rent on Joseph Wahome’s account but when he realized it was the Defendant who was paying, he refunded the same.
The Defendant’s submissions
21.They are dated 11th February 2022.Counsel for the Defendant framed the following issues for determination: -a.Does the court have jurisdiction to hear and determine this case?b.Is the Defendant a trespasser on the Plaintiff’s premises?c.Is the Defendant entitled to the orders sought?d.Who should bear the cost?
23.On whether the Defendant is a trespasser, he submitted that the Plaintiff’s agents could not have written to the Defendant vide the letter dated 23rd May 2014 and the subsequent letter of 25th August 2015 in her capacity as a ‘trespasser’ and continue receiving rent from her as a trespasser. He added that the Defendant is not entitled to mesne profits since they were not specifically pleaded as required. He added that one cannot owe rent arrears unless one is a tenant. It was his submission that the order for damages for trespass cannot be granted as the Plaintiff did not prove that the Defendant is a trespasser since she got into the shop as shown by vide the letter dated 23rd May 2014 and the subsequent letter of 25th August 2015.
24.I have considered the pleadings and the evidence on record. I have also considered the written submissions filed on behalf of the parties and the authorities cited. The issues for determination are:-i.Whether there exists a tenancy relationship between the Plaintiff and the Defendant.ii.Is the Plaintiff entitled to the reliefs sought?iii.Who should bear costs of this suit?
25.It is not in dispute that the Defendant allegedly took over possession of Shop No 3. The previous tenant in the shop was Joseph Wahome. The Defendant in her testimony stated:-
26.When she was cross examined by Mr. Thimba for the Plaintiff she stated that she did not contact the Plaintiff with respect to shop no.3. she also admitted that the landlord (Plaintiff) was ordered to receive the rent by the Business Premises Rent Tribunal. She was referred to a letter dated 25th August 2015 by Sedco Consultants where she was required to confirm acceptance within seven (7) days. She admitted that she had no letter confirming acceptance and that she did not receive a lease agreement. She stated that she paid good will to Joseph Wahome.
27.It is clear from the foregoing that there is no lease agreement between the Plaintiff and the Defendant in respect of Shop No. 3. PW, the Plaintiff told the court that the lease with Joseph Wahome did not allow him to sublet or sell the premises without the consent of the Plaintiff.
28.He also stated that the rent was paid in the name of Joseph Wahome until he realized there was someone else in the shop. He further stated that he was not involved in any negotiations between the Defendant and Joseph Wahome. He also stated that he refused to accept rent from the Defendant in respect of the shop but he was compelled by the Business Premises Rent Tribunal.
29.The Plaintiff produced the returns for May 2016 by Sedco Consultants as exhibits P 9 and P10. They indicate that Joseph Wahome was still the tenant.
30.The Plaintiff further told the court that by a letter dated 10th July 2017 he demanded vacant possession to which the Defendant ignored necessitating the Plaintiff to file this suit. There is a letter from Sedco Consultants dated 10th May 2017 to the Plaintiff denying that Shop No 3 was properly given to the Defendant.
31.It is the Plaintiff’s contention that he intends to use the suit premises for his own use.
32.It is the Defendant’s case that there exists a BPRT Case No 163 of 2017 between the Plaintiff and the Defendant in respect to the suit premises. The said reference was filed by the Defendant herein against the Plaintiff after she was given a notice to vacate. I find that the Defendant having admitted that there is no lease agreement between her and the Plaintiff means that there exists no tenancy relationship between them.
33.The pendency therefore of BPRT Case No 163 of 20 17 cannot bar this court from handling this matter. The defence of subjudice is therefore unfounded.
35.The Defendant relies on a letter dated 29th November 2014 by Joseph Wahome to Sedco Consultants Ltd. The same is headed:
36.The Defendant also relies on a letter dated 25th August 2015 by Sedco Consultants to the Defendant. The heading is “Expiry of Tenancy Agreement on LR No 209/1354 Park Road Ngara”.
37.The Defendant was given seven (7) days to confirm that the lease could be renewed for a six (6) year term at a rent of Kshs.18,000 per month with a yearly increment of 10% per annum. It is the Defendant’s evidence that she did not confirm within the seven days. She also told the court that the lease was not forwarded to her.
38.She also confirmed that the Landlord was compelled by the Business Premises and Rent Tribunal to accept rent from her. The order of the Tribunal is in respect of shop no 1 and 3. It should therefore be noted that the Mpesa statements produced by the Defendant are not in respect of Shop No 3 only.
39.I find that the extended stay by the Defendant on the suit premises was by virtue of the reference she had filed in the Business Premises Rent Tribunal. The Defendant ought to have proved that the landlord accepted rent willingly therefore regularizing her stay on the suit premises. This was not the case.
40.I find that the Plaintiff is entitled to the reliefs sought in the Plaint as the notice to vacate was proper. The Plaintiff is entitled vacant possession. The Defendant did not enter into the suit premises lawfully hence she became a trespasser.
41.It is the Defendant’s submissions that the Plaintiff is not entitled to mesne profits because they were not pleaded. This is not true as paragraph 15 of the plaint reads:-
42.The rent that was being paid by Joseph Wahome was Kshs.16,000 per month. As per the renewed lease which was not executed by the parties the Defendant was to pay Kshs.18,000 per month. In calculating mesne profits the court will use the rent paid by the previous tenant which is Kshs.16,000/- from February 2017 to date which translates to kshs.650,000/- which if added to Kshs.111,500/- will translate to Kshs.761,500/-. If there is any rent the Defendant paid to the Plaintiff by virtue of the orders of the Tribunal in respect of Shop No. 3 the same ought to be deducted from this amount.
43.Though the court declared the Defendant as a trespasser in the suit premises owing to the lack of consent from the landlord, I do not award any damages since the Plaintiff admitted some rent was paid.
44.In conclusion, I find that the Plaintiff has established his case as against the Defendant on a balance of probabilities.
45.Accordingly, judgement is entered for the Plaintiff as against the Defendant as follows:-a.That the Defendant is hereby ordered to vacate shop No 3 on LR No 209/1354 Park Road Ngara within twenty one (21) days from the date of this judgement. In default the Plaintiff do use lawful means to evict the Defendant.b.Mesne profits of Kshs.761,500/- less any rent already paid.c.Costs of the suit and interest.It is so ordered.