Baringo United Company Limited v Bina Wholesalers & 2 others (Environment & Land Case E196 of 2021) [2024] KEMC 133 (KLR)

3. b. Kshs. 63,800 per month from 1st November 2019 and as may accrue until vacant possession is given as against the 2nd Defendant. c. Kshs. 111,012 per month from 1st November 2019 and as may accrue until vacant possession is given, against the 3rd Defendant. iv. Eviction of the 1st, 2nd and 3rd Defendants from the property Nakuru Municipality Block 5/114 within 90 days from the date hereof, of which notice is hereby given; and the Oficer Commanding Nakuru Central Police Station to ensure compliance and supervise the eviction for the purposes of maintaining law and order. v. Interests on (ii) and (iii) above at the rate of 12% per annum from 1st November 2019 until vacant possession is given. vi. Costs of this suit vii. Such other and further relief as this Honorable Court may deem fit and just to grant. The issue herein is based on the fact of the Plaintifi, being a landlord and the proprietor of the suit land in question, Nakuru Municipality Block 5/114, seeks this court’s indulgence to evict the Defendants, tenants, from the said premises. Summary of the Plaintifi ’s case 4. As per the Plaintifi’s averments, it is alleged that the Defendants herein were issued with Notices of Termination of Tenancy, dated 26th June 2019 and were to take efiect on 1st November 2019. The said notice was not challenged as the application to file reference out of time was dismissed. 5. The Plaintifi further asserts that the Defendants failed to adhere to the Notices of Termination of Tenancy, and it is only after institution of this suit that the 3rd Defendant moved out of the premises, albeit the 1st and 2nd Defendants, remained in occupation of the said property. 6. The Plaintifi adduced evidence in support of its claim against the Defendants, which includes witness testimony of PW1, his statement, among other documents marked as Plaintifi exhibits No. 1,2,3,4 & 5. The Plaintifi’s witness, PW1 (Laremasubet Micah K. Kiptui), on cross-examination, stated that they did not receive any money from the 1st and 2nd Defendants. Further, the witness claims that any payment made by the 1st Defendant in respect to rent fees were done without his knowledge, and bank slips and receipts of payment thereof were not availed to the Plaintifi by virtue of the 1st Defendant acknowledging that they were no longer the Plaintifi’s tenants. 7. It is the Plaintifi’s assertion that the 2nd Defendant herein, has been in rent arrears even before the termination notices were issued. That the 2nd Defendant is in default of rent fees amounting to Kshs. 419,000. This Court takes note and acknowledges that prior to this suit being instituted, a congruent matter was handled with respect to the subject matter herein, at the Business Premises Rent TribunalTribunal Case No. 173 of 2019. In that case, the Tribunal, in its ruling dated 20th April 2022, held in favor of the Plaintifi, stating that the termination notices were valid and stood in efiect, without objection, since any reference by the Defendants, were filed out of time, thus inadmissible. 8. The Plaintifi vide the testimony of PW1, afirmed that the 1st and 3rd Defendants had been paying rent to their bank account and that the 1st and 3rd Defendants had moved out in 2023, but that the 1st Defendant came back and got another shop. https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/133/eng@2024-07-25 2

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9. The Plaintifi has this filed this suit to seek judicial redress and ofiset the eviction of the Defendants herein, from their property. The Plaintifi vehemently denounces any claim by the Defendants as to their continued tenancy in the suit premises, and hence, prays for a declaration of trespass, rent arrears, mesne profits, interest and costs of the suit. Summary of the Defendants’ case 10. In this matter, it is only the 1st Defendant whom provided testimony and evidence in support of their case against the Plaintifi. Apart from their witness testimony, the 1st Defendant produced exhibits to reinforce their case, namely; Exhibit No. 1,2,3& 4. 11. DW1, Mr. Savla, testified to being the Director of the 1st Defendant. He stated that they have been in occupancy of the Plaintifi’s premises since 2002 and have been paying rent as duly expected. The witness, DW1, acknowledged that the Plaintifi had issued them with a termination notice in 2019, but that they did not vacate the premises and have been in occupation despite the notice having taken efiect. In his testimony, he (DW1) alleges that subsequent to the issue of termination notices, new tenants began their occupancy and possession of the 1st fioor. He afirms that the termination notices were selectively issued and he was unduly subjected to the same. 12. The witness also confirms that there exists no written tenancy agreement between them and the Plaintifi herein, but that they have nevertheless been paying rent to the Plaintifi as usual, and the Plaintifi/Landlord has never, at any point, refused acceptance of the same, or reverted the paid sums back to the 1st Defendant. The 1st Defendant has furnished the court with documents (copies of Bank receipts) proving that indeed, they have been paying the Plaintifi rent, even after the termination notice took efiect in 2019. The witness further claims that even though he has been making payments to the Plaintifi, the Plaintifi has not furnished them with any receipt in acknowledgement of their payments. Prior to the termination notice taking efiect in 2019, the Plaintifi used to give receipts to the 1st Defendant upon rent payment, as alleged by the witness, DW1. 13. The Defendants allege to be lawful tenants and are not trespassers since they have been paying rent to the Plaintifi, even after the termination notices took efiect. They further claim that the Plaintifi herein is not entitled to the prayers pleaded in their plaint, since it would be tantamount to double compensation and arbitrary eviction, owing to the fact that they have allegedly been paying rent and are in current occupation of the suit premises. They pray that this court dismisses the Plaintifi’s suit, and with costs to the Defendants herein. Issues for determination 14. Having read through and analyzed the submissions from both the Plaintifi and Defendants, it is this court’s finding, that the points of determination herein, are; i. Whether the Defendants are lawful tenants or they are trespassers? ii. Whether the Plaintifi herein is entitled to the reliefs sought in this suit? Analysis & Determination Issue No. (i) Whether the Defendants are lawful tenants or they are trespassers? 15. The matter herein pertains controlled tenancy. The law governing tenancy of such a nature, is the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 of the Laws of Kenya. Section 2 (1) of the act it states that; https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/133/eng@2024-07-25 3

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‘Controlled tenancy’ means a tenancy of a shop, hotel or catering establishment— (a) which has not been reduced into writing; or (b) which has been reduced into writing and which — (i) is for a period not exceeding five years; or (ii) contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof; or (iii) relates to premises of a class specified under subsection (2) of this section: Provided that no tenancy to which the Government, the Community or a local authority is a party, whether as landlord or as tenant, shall be a controlled tenancy 16. The Plaintifi herein claims that the Defendants are trespassers on his premises and is before this court seeking their eviction, rent arrears, mesne profits and interests on the same and costs of the suit. The Plaintifi has provided proof of the termination notice issued to the Defendants herein, dated 26th June 2019, and which took efiect on 1st November 2019. The termination notice marked PExh 4 and DExh 2, shows that the Plaintifi sought to terminate the tenancy agreements with the Defendants so as to undertake renovations and construct a modern building. The notices were served to all three defendants herein on 26th June 2019 and they were given 4 months’ notice of eviction, which was to be efiected on 1st November 2019. Additionally, the Plaintifi seeks rent arrears and mesne profits from the Defendants. Because of the evidence of the termination notices which was to take efiect on 1st November 2019, I do find that the Defendants owe the Plaintifi mesne profits as from 1st November 2019 till the date that vacant possession is granted to the Plaintifi. However, the court takes into consideration the evidence in the bank slips, being payment of rent by the 1st and 3rd Defendants herein, as from September till December of 2022. 17. The matter that arises therefore, is whether the said termination notices were valid. The termination notices were filed in adherence to Section 4 (2) of the Landlord & Tenant (Shops, Hotels & Catering Establishments) Act Cap 301 Laws of Kenya, which provides that; 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 18. The reason for termination was legitimate and was consistent with the provisions of Section 7 of the said Act, with regard to the reasons of termination of tenancy, which provides under subsection (f) that; …on the termination of the tenancy the landlord intends to demolish or reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises. 19. As it is, the notices were efiective as from 1st November 2019, as provided by Section 6 (1) prescribes that: A receiving party who wishes to oppose a tenancy notice, and who has notified the requesting party under section 4(5) of this Act that he does not agree to comply with the tenancy notice, may, before the date upon which such notice is to take efiect, refer the https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/133/eng@2024-07-25 4

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matter to a Tribunal, whereupon such notice shall be of no efiect until, and subject to, the determination of the reference by the Tribunal 20. Noting from the Tribunal Case No. 173 of 2019, that preceded the suit herein, the Defendants references were filed out of time and thus, the termination notices remained valid and in efiect. In Nandlal Jivraj Shah & 2 others (all trading as Jivaco Agencies v Kingfisher Properties Limited [2015] e KLR, the Court therein pronounced itself on the issue of references and termination notices, citing that in the absence of duly lodged and served references, termination notices stood efiective, and the claim that controlled tenancy continued to exist even upon the lapse of the stipulated notice period is erroneous. The court also observed that it is only the filing of a reference which suspends time with respect to the tenancy notice. 21. Similarly, this Court also takes cognizance of the observations of the court in Mbandu v Chohan & another (Environment and Land Case Civil Suit E005 of 2020) [2023] KEELC 17335 (KLR), where it was stated, After the dismissal of the 1st Defendant’s reference, the 1st Defendant’s tenancy stood terminated in accordance with the notice dated 4th October 2016 that was served upon the 1st Defendant pursuant to section 4(2) of the Act. The 1st Defendant therefore became a trespasser on the suit property. The 1st Defendant being a trespasser on the suit property, the notice to vacate that was served upon him by the Plaintifi on 1st July 2020 that was not even necessary was suficient. The 1st Defendant’s tenancy having been terminated by operation of law; the Plaintifi needed not to give any reason for asking the 1st Defendant to vacate the suit property. 22. Likewise, and in parallel regard, this Court stands guided by the findings and subsequent ruling of the Business Premises Rent Tribunal in the Tribunal Case No. 173 of 2019. The Tribunal therein, found in favor of the Plaintifi herein, and dismissed the Defendants application to file references out of time. This had the efiect of authenticating the legitimacy of the termination notices dated 26th June 2019, meaning that they stood valid, and without any reference as to their objection. Thus, as per the requisite date of 1st November 2019, the Defendants had legally ceased being tenants of the Plaintifi’s premises, and any continued occupation of the said property after the said date, would sufice to amount to trespass. 23. The Defendants on the other hand, claim that they are lawful tenants within the Plaintifi’s property. They acknowledge receipt of termination notices from the Plaintifi, dated 26th June 2019. They allege that on account of technological dificulties on the Judiciary’s end, they were unable to file their references in time. Notwithstanding, they afirm that they have been paying rent as normal, to the Plaintifi, specifically, the 1st and 3rd Defendants. 24. Section 109 of the Evidence Act 2012, stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. 25. In consideration of the aforementioned, it is trite that the Defendants herein, bear the evidentiary burden of proving the alleged payments of rent to the Plaintifi, from 1st November 2019 till the institution of this suit. The receipts provided by the 1st and 3rd Defendant only provide proof of payment for rent for the months of September, October, November & December of 2022. They have not provided proof of payment of rent from 1st November 2019 to August 2022. In addition, no evidence has been adduced as to the payment of rent beyond December 2022. In light of this, it would https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/133/eng@2024-07-25 5

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be justified to come to the conclusion that, upon termination of tenancy vide the notices dated 26th June 2019, the Defendants ceased being tenants and any continued occupation of the said premises would be trespassing on the Defendants part. 26. With respect to the 2nd Defendant, as from the date which the termination notice of their tenancy took efiect, on 1st November 2019, they have been in possession and occupation of the Plaintifi’s property illegitimately. They have not provided proof of any payments of rent made. Moreover, it is alleged that the 2nd Defendant is in arrears of rent prior to the issuance of the termination notice by the Plaintifi. 27. The provisions of the Land Act 2012, Section 60, the law prescribes that: A lessor who accepts rent in respect of any period after the lease has been terminated or the term of the lease has expired, shall not, by reason of that fact, be deemed to have consented to the lessee remaining in possession of the land, or as having given up on any of the rights or remedies of the lessor against the lessee for breach of a covenant or condition of the lease, and if the lessor continues to accept rent from a tenant who remains in possession for two months, after the termination of the lease, a periodic lease from month to month shall be deemed to have come into force. 28. To this efiect, the courts have made a similar observation in this respect, where, in the case of Nancy Njeri Gitau & Another v James Muchone Njuga & Another 2021 eKLR, it was held that by the mere fact that the landlord received rent after the issuance of the termination notices, superseded the notice, thereby creating a controlled tenancy and as such, a landlord/tenant relationship was born into existence. Similar sentiments were echoed by the court in Ngunjiri (Administrator of the Estate of Muraya Chege (deceased) v Muhia 2023 KEELC 18269 Environment & Land Appeal E006 of 2022. 29. Considering the issue as to the legitimacy of the tenancy relationship, it is this Court’s finding that the Defendants ceased being tenants on 1st November 2019, after the termination notices took efiect. However, consideration is due, to the fact that the 1st and 3rd Defendants deposited sums of money to the Plaintifi’s bank account for payment of rent. The bank slips provided as exhibits on behalf of the Defendants, show that they have only paid rent to the Plaintifi for the months of September, October, November and December 2022. This would imply that since the termination notice took efiect on 1st November 2019, no rent was paid by the Defendants till August of 2022. Resultantly, the Defendants, having no active or valid tenancy agreement with the Plaintifi, have been in trespass of the Plaintifi’s property, as from 1st November 2019. The 3rd Defendant as noted in the witness testimony of PW1, moved out after the suit herein was instituted, thus their duration of trespass runs from 1st November 2019 till November 2021.With regards to the 1st and 3rd Defendants, upon payment of rent in September 2022, they resumed their tenancy in 2022, from September, on a monthly basis, till December 2022. 30. Accounting that as per the witness testimony of PW1, the 3rd Defendant is alleged to have moved out of the premises owned by the Plaintifi, sometime after this suit was instituted in the beginning of 2023. The same has only been stated via oral testimony, and no further evidentiary proof has been adduced to that efiect. The 3rd Defendant has furnished bank receipts of payment of rent to the Plaintifi for September, October, November and December 2022. Noting that the 1st and 2nd Defendants herein are still in occupation of the premises owned by the Plaintifi, it is commonplace that the Plaintifi ought to be compensated for the profit they would have earned from the occupancy of their premises. 31. Having taken the aforementioned into consideration, it is this court’s finding that in light of the termination notices dated 26th June 2019, and which took efiect on 1st November 2019, the Defendants herein ceased being tenants within the Plaintifi’s property. This is in consideration of the fact that no https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/133/eng@2024-07-25 6

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evidence as to payment of rent to the Plaintifi was given for the duration between 1st November 2019 to August 2022. In furtherance to this, the 2nd Defendant, having not paid or deposited any rent to the Plaintifi subsequent to the termination notice taking efiect on 1st November 2019, as it stands, since then, to the date of this suit, the 2nd Defendant has been in occupation of the premises owned by the Plaintifi and thus, has been trespassing against the Plaintifi’s property. 32. The 1st Defendant, is liable for trespass for the duration between 1st November 2019 till August 2022, and subsequently, after January 2024, they stand to be in trespass of the Plaintifi’s premises. In conclusion, as things stand, the Defendants herein are trespassers on the Plaintifi’s property. Issue No. (ii) Whether the Plaintifi herein is entitled to the reliefs sought in this suit? Rent Arrears 34. Having established in the first issue of determination that the Defendants herein are in breach of the termination notices, it is evident that the Plaintifi, being the aggrieved party herein, is entitled to compensation and payment for the occupation of their property by the Defendants. This court, having established that the Defendants were in unlawful occupation and possession of the Plaintifi’s premises, we shall proceed to dissect and analyze the other reliefs sought by the Plaintifi. 35. With respect to the rent arrears sought against the 2nd Defendant, amounting to Kshs. 419,000, the law as per the provisions of the Evidence Act (Section 107 & 109) tasks the Plaintifi to adduce evidence to prove that indeed, the 2nd Defendant is in default of rent fees. The Plaintifi has merely alleged that the 2nd Defendant is liable for rent arrears, which allegedly, have accrued prior to the termination notices taking efiect. It would have been prudent on the Plaintifi’s part, to undertake the production of evidence in support of their claim for rent arrears due to them against the 2nd Defendant. 36. In Ciabaitani M’Mairanyi & Others V Blue Shield Insurance Co. Ltd CA No.101 of 2000(2005) 1EA 280, the court held that; Whereas under section 107 of the Evidence Act, which deals with the evidentiary burden of proof, the burden of proof lies upon the party who invokes, the aid of the law and substantially asserts the afirmative of the issue. Section 109 of the same Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence. 37. This court agrees with the submissions of the Defendants specifically, on the reliance of the case of Oscar Luvaha Explore Auto Valuers & Accessories Limited) v Babi Investments & Another [2021] eKLR, where the Plaintifi’s case in that matter, was dismissed for failure to discharge the burden of proving that the tenant therein, was in arrears of rent. 38. Taking into consideration that the Plaintifi herein has not adduced evidence to support their claim of rent arrears against the 2nd Defendant, this court finds that the Plaintifi is not entitled to the alleged rent arrears, owing to the fact that they have not proved that the alleged rent arrears of Kshs. 419,000 were due to them. Moreover, the Plaintifi has not established to the court, the duration for which the said rent arrears were due for. The Plaintifi has merely stated that the 2nd Defendant was in default of rent, even before the termination notice took efiect on 1st November 2019. Mesne Profits 39. In respect to the relief sought for mesne profits, this court has, in its analysis and examination of the particulars herein, established that the Defendants were unlawfully in occupation of the Plaintifi’s https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/133/eng@2024-07-25 7

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property. As from 1st November 2019, the tenancy agreement between the Plaintifi and Defendants herein, collapsed and ceased to be efiective. Noting the same, it is a matter of fact, that the Defendants have not provided any evidence as to the rent payments made to the Plaintifi from November 2019, till beyond the time when the suit was instituted in 2021. Additionally, no evidence was given by the 1st Defendant in support of the claims of continued rent payment from November 2021 till 1st September 2022. 40. It is the court’s finding in this matter, that the Defendants owe mesne profits to the Plaintifi herein, specifically; I. The 1st Defendant owes the Plaintifi mesne profits from 1st November 2019 till August 2022, then as from January 2024 till the date vacant possession is granted to the Plaintifi. II. The 2nd Defendant owes the Plaintifi mesne profits as from 1st November 2019 till the date vacant possession will be accorded to the Plaintifi. III. The 3rd Defendant owes the Plaintifi mesne profits from 1st November 2019 till August 2022. Eviction order 41. Having established that the termination notices stood efiective as from 1st November 2019, the court finds that, with regards to the 2nd Defendant, the termination notice stands efiective until the date vacant possession will be given to the Plaintifi. This would mean that the 2nd Defendant is liable for eviction, considering that they have not paid any rent to the Plaintifi as from 1st November 2019, to this current date. 42. For the 1st and 3rd Defendants, their termination notices also took efiect as from 1st November 2019 till August 2022. Since the Plaintifi (PW1) herein acknowledged that the 1st and 3rd Defendants have been depositing money into their bank account, there existed a tenancy relationship on a monthly basis, with respect to the 1st and 3rd Defendants. This relationship, as per the evidence adduced, would only sufice for the period of 4 months, of which the 1st & 3rd Defendants had made payments for rent to the Plaintifi for the months of September till December 2022. The receipt of payment by the Plaintifi would serve to negate the termination notices issued in June 2019. This would mean that the termination notices ceased to be efiective as from August 2022. From the said testimony of PW1, the 3rd Defendant herein has already vacated the premises thus, an eviction order against them would be irrelevant. 43. Acknowledging that there is no tenancy agreement between the Plaintifi and the Defendants herein, and that no rent and evidence of the same has been adduced to support the Defendants’ claim of continued occupancy by virtue of payment of rent, this court finds that the Plaintifi being the proprietor of Nakuru Municipality Block 5/114, and having rights thereof, is entitled to quiet possession of their property, free from interference from the 1st and 2nd Defendants, thus, an eviction order in favor of the Plaintifi, would serve to protect the property rights. 44. After consideration of the matter herein, and the respective party submissions, I do hereby enter judgement as follows; i. I do hereby certify that owing to the failure to relay payment of rent and lack of a valid tenancy agreement between the Plaintifi and the Defendants, the 1st, 2nd and 3rd Defendants are trespassers in the suit property of the Plaintifi. The period for trespass for the Defendants being https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/133/eng@2024-07-25 8

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ii. a. 1st Defendant; from (1st November 2019 – August 2022), then from January 2024 till the date vacant possession will be given to the Plaintifi. b. 2nd Defendant; from (1st November 2019 till date vacant possession is granted to the Plaintifi). c. 3rd Defendants being from (1st November 2019 – August 2022). The Plaintifi is awarded mesne profits at the following rates of (plus Interest on the same) a. Kshs. 104, 632 per month as from 1st November 2019 to August 2022, then as from 1st January 2024 and as may accrue until vacant possession is given as against the 1st Defendant. b. Kshs. 63,800 per month from 1st November 2019 and as may accrue until vacant possession is given as against the 2nd Defendant. c. Kshs. 111,012 per month from 1st November 2019 to August 2022. iii. An order for eviction is hereby granted against the 1st and 2nd Defendants. iv. Costs are awarded to the Plaintifi, against the Defendants. DATED, SIGNED AND DELIVERED AT NAKURU IN OPEN COURT THIS 25th DAY OF July 2024. ALOYCE-PETER-NDEGE SENIOR PRINCIPAL MAGISTRATE In the presence of; Plaintifi’s counsel: Kiptoon Defendant’s Counsel: n/a Plaintifi: n/a Defendant: n/a https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/133/eng@2024-07-25 9

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