Alfonce Bwire v Gabriel Otuchi [2021] KEBPRT 77 (KLR)

Alfonce Bwire v Gabriel Otuchi [2021] KEBPRT 77 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E025  OF 2021  (KAKAMEGA)

ALFONCE BWIRE....................................................................APPLICANT/TENANT

VERSUS

GABRIEL OTUCHI.........................................................RESPONDENT/LANDLORD

JUDGMENT

1.  Through a tenancy notice dated 6th August 2021, the Landlord is seeking vacant possession of the premises occupied by the tenant with effect from 1st November 2021 to enable him carry out major renovation thereof.

2.  The landlord seeks further to recover rent arrears from the tenant.

3.  The notice is opposed through a reference dated 19th August 2021 by way of  Viva Voce evidence on 28/10/2021 when both parties testified without calling any witnesses

4.  It was the landlord’s case that the demised premises was at the verge of falling down on account of anthill on the floor thereof and at the neighbouring plot.  The premises needed renovation although the tenant was objecting.

5.  The landlord produced photographs to show destruction occasioned by ants to the house as exhibits “P. 1 (a)-(c)”.  He stated that he needed to remove the floor and destroy the anthill together with the roof for repair purposes.  He feared that the house might fall and injure the occupants.

6.  He stated that he had money to undertake the repairs.  In cross-examination, the landlord stated that the tenant had been in occupation of the premises for 7 years.  He was denied permission by the tenant to take photos inside the premises.  The Assistant Chief in an attempt to resolve the matter visited the premises on five (5) occasions in vain.

7.  The tenant on his part testified that he had been a tenant for the last 7 years.  He confirmed that there was an anthill in the corridor between the landlord’s house and that of the neighbour.

8.  The tenant testified that he alerted the landlord about the anthill and was told to ignore it. 

9.  He stated that the ants had started to destroy the roof but he sprayed the timber with pesticides.

10. In September, the landlord informed the tenant that he had increased rent from Kshs.3000/- to Kshs.5000/- and refused to negotiate the increment.  As a result, the tenant acceded to the increment.

11. It is the tenant’s case that he has no alternative site for his business.  He stated that the suit premises had no problem as the white ants were not on his side of the premises.  The shelves were intact.

12. According to the tenant in cross-examination, the corridor is only 6 inches and nobody can pass between the suit premises and  the neighbours plot.  When the landlord sent an elder, the tenant confirmed that he insisted on being served with notice.

13. I am now called upon to determine whether to uphold the notice to terminate tenancy or dismiss it.  I am further required to determine who is liable to pay costs.

14. I had the advantage of listening to the case orally and the landlord impressed me as a truthful witness.  I saw in him a genuine and settled intention to undertake substantial renovations to the suit premises which cannot be done while the tenant remained in occupation.

15. The tenant confirmed existence of an anthill in the narrow corridor between the landlord’s house and that of the neighbor.  He confirmed that at one point the ants started to destroy the roof of the suit premises which he sprayed with pesticides.

16. I have looked at the notice to terminate served upon the tenant and the same complies with section 4(1) as read with section 7(1) (f) of Cap. 301, Laws of Kenya.

17. In the premises, I find and hold that the Landlord has demonstrated a genuine and settled intention to undertake the proposed renovations in line with the decision in Auto Engineering Ltd -vs- M. Gonella & Co. Ltd (1998) eKLR.

18. I therefore proceed to make the following orders in this matter:-

(i)    The landlord’s notice of termination of tenancy dated 6th August 2021 is hereby upheld.

(ii)    The tenant shall vacate from the suit premises to give way for the intended renovations on or before 31st January 2022 failing which the landlord shall be at liberty to evict him through a licenced auctioneers.

(iii)    The OCS, Ogalo Police Station to provide security during enforcement of the eviction order.

(iv)    Costs to the landlord assessed at Kshs.10,000/- against the tenant.

DATED, SIGNED AND DELIVERED THIS 3RD DAY OF DECEMBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

IN THE PRESENCE OF:

TENANT IN PERSON

NO APPEARANCE FOR THE LANDLORD

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