REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 243 OF 2021 (NAIROBI)
AQUARIUM GUEST HOMES LIMITED.............................................TENANT/APPLICANT
VERSUS
RAPHAL GEORGE MACHARIA................................................LANDLORD/RESPONDENT
RULING
1. By a motion dated 16th March 2021, the Tenant is seeking for restraining orders against the Landlord from interference with its quiet possession and enjoyment of land Reference no. 20610/2, Kiambu Road.
2. It is also seeking to strike out all the Landlord’s notices of termination for being defective.
3. The application is supported by the Tenant’s director’s affidavit of one Joshua Ng’ang’a Njeri sworn on 16th March 2021.
4. The impugned termination notices are annexed thereto as annexture AHLI.
5. The Tenant avers that it has been a tenant in the premises for the last 5 years during which it has created goodwill and strong customer base.
6. The Tenant is thus praying for renewal of the lease and an order to restrain eviction.
7. In his replying affidavit sworn on 15th April 2021, the Respondent avers that he entered into a tenancy agreement with the Applicant/Tenant for a term of five (5) years which ended on 15th February 2021.
8. Before the lapse of the 5 years, he gave notice to the Tenant by a letter dated 25th August 2020 intimating that he did not wish to renew the tenancy.
9. It is the Respondent’s contention that he cannot be forced to renew the Tenant’s tenancy.
10. The Respondent contends that the Tenant was irregularly paying rent leading to several demands for payment in terms of annexures RGM2.
11. The Tenant is said to have illegally sublet parts of the premises to unsuspecting third parties for terms beyond the 5 years term with a case in point being annexure RGM3.
12. The tenant was also making illegal renovations and unauthorized changes to the original structures in disregard of written and verbal objections by the Respondent.
13. The Tenant is said to have encroached on a neighbouring Land/plot leading to a suit against the Landlord vide case no. 161 and 162 2017 in Kiambu. The Respondent therefore prays for vacant possession.
14. It is not disputed that the Tenancy agreement between the two parties expired and the same was never renewed by mutual agreement.
15. The Tenant wishes that this Tribunal extends the same despite the Landlord being against it.
16. In the case of Nandlal Jivraj Shah & 2 others – vs- Kingfisher Properties Limited (2015) eKLR at page 6/7 the court of appeal held as follows:-
“Similarly, the proposition that a controlled tenancy continues to exist merely because the appellants are still in occupation of the premises is with due respect to learned counsel preposterous. No provision of law creates controlled tenancies by virtue of mere occupation of premises and with non payment of rent no less. The fact that the Respondent is yet to evict the appellants does not serve to resurrect a controlled tenancy which has already run its course and been terminated”.
17. I therefore hold that the lease agreement having come to an end, the Tenant is illegally in occupation of the suit premises.
18. As to the request that this court extends the Tenant’s illegal stay in the premises, I hold that the duty of the court is to interprete contracts made by parties and not to rewrite them. In this regard I am guided by the decision in Dr. Koisagat Tea Estate Ltd – vs- Eritrea Othodox Tewhdo Church Ltd (2015) eKLR at page 8/13 and 9/13.
19. I therefore dismiss the application dated 16th March 2021 with costs of Kshs.15,000/- to the Respondent.
20. In line with the provisions of section 12(1) (e ) of Cap. 301 which gives this court power to make orders upon such terms and conditions as it thinks fit for the recovery of possession and in order to avoid a multiplicity of suits, the Tenant shall vacate from the suit premises within the next Thirty (30) days hereof failing which the Landlord shall be entitled to evict him with the assistance of a licensed auctioneer with the local OCS providing security to ensure peace and order is maintained.
It is ordered.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
DATED, SIGNED & DELIVERED THIS 7TH DAY OF MAY 2021.
In the presence of:
MOMANYI FOR THE TENANT/APPLICANT
MISS MAINA FOR THE RESPONDENT/LANDLORD