[2025] KEBPRT 241 (KLR)

Akello t/a Triple A Advocates v Dickways Construction Limited & 3 others (Tribunal Case E1280 of 2024) [2025] KEBPRT 241 (KLR) (15 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 241 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1280 of 2024

A Muma, Member

April 15, 2025

Between

Jacqueline Lorraine Akello t/a Triple A Advocates

Applicant

and

Dickways Construction Limited

Landlord

and

Rachel Gathehu

1st Respondent

Accurate Homes Limited

2nd Respondent

Nicholas Gikundi

3rd Respondent

Ruling

A. Parties and their Representatives 1. The Applicant, Jacqueline Lorraine Akello T/A Triple A Advocates, is a Tenant at the Property LR No 1/707 Apartment No 2 on the Fourth Floor of Wood Avenue Park Apartments herein after referred to as the “suit premises”.

2. The Applicants are representing themselves in the matter.

3. The 1st Respondent Dickways Construction Limited is the Landlord at the suit premises.

4. The 2nd and 3rd Respondents, Rachel Gathethu and Accurate Homes Limited are property managers at the suit premises.

5. The Landlord and the 2nd Respondent have neither appeared before this Tribunal in person nor appointed Advocates to represent them.

6. The firm of Ms. B. Kagunyi & Company Advocates represents the 3rd and 4th Respondents in the instant matter.

B. Background of the Dispute 7. The Tenant moved this Tribunal vide a Reference dated 19th November 2024 filed with a Notice of Motion Application under Certificate of Urgency of dated 21stseeking orders, inter alia:a.the Tribunal issues orders directing the Respondents to reconnect water supply to the suit premises pending the hearing and determination of the Application;b.the Tribunal issues orders restraining the Respondents from disconnecting power supply pending the hearing and determination of the Application;c.the Tribunal issues orders restraining the Landlord from harassing, levying distress, or threatening to evict the Tenant and/or interfering with the Tenant’s quiet possession and lawful enjoyment of the suit premises pending the hearing and determination of the Application;d.the Tribunal issues orders directing the Respondents to refund the Tenant all their investment in the suit premises and opportunity cost in the sum of Kenya Shillings Five Million (Kshs 5,000,000); ande.the Tribunal provides for the Costs of the Application.

8. On 21st November 2024, the Tribunal granted the orders in (a) (b) and (c) above and directed the Tenant to serve the Application upon the Landlord for inter-partes hearing on 18th December 2024.

9. The Landlord and the 2nd Respondent neither entered appearance nor filed any response to the Tenant’s Reference and Application.

10. The 3rd and 4th Respondents filed their Replying Affidavit dated 18th December 2024.

C. Tenant’s Case 11. The Tenant’s case is that the Respondents’ purported to change the suit premises’ without issuing a prior notification for the said changes to the Tenants. The Tenant also faulted the purportedly new Landlords for failing to provide proof of ownership of the suit premises despite the several requests that the Respondents tenders the title documents.

12. The Tenant also faulted the Respondents for requiring them to remit the rental arrears to suspicious accounts contrary to the provisions of the Proceeds of Crime and Anti-Money Laundering Act, Cap 59A of the Laws of Kenya.

13. The Tenant stated that the Landlord and the other Respondents have harassed them, disconnected water supply, threatened to disconnect water supply and issued them with a faulty notice when they attempted to raise concerns on the Respondents’ conduct.

14. The gravamen of the Tenant’s case is that the Respondents have failed and/or neglected to repair the suit premises despite the various attempts and correspondences made by the Tenant to that effect.

15. The Tenant avers that the suit premises are unfit for human habitation and prejudicial to their Staff’s and Clients’ safety. They further argued that the current circumstances of the suit premises have occasioned them economic peril. The Tenant states that the suit premises have leaking flash rooms that cause flashing difficulties, broken doors, poor drainage system cracked walls and loose ceilings.

D. 3rd and 4th Respondents’ Case 16. The 3rd and 4th Respondents faulted the Tenant for making frivolous claims and using the office secretary as the deponent in the Affidavit in Support of their Application.

17. The 3rd and 4th Respondents’ case is that the Tenant was under an obligation to assess the condition of the suit premises prior to the execution of the Tenancy Agreement. The 3rd and 4th Respondents further averred that the Tenant is under an obligation to maintain the internal repairs of the suit premises.

18. The 3rd and 4th Respondents faulted the Tenant for failing and/or neglected to pay rental arrears to the tune of Kshs 140,000 despite their commitment towards the clearance thereof. They averred that the Tenant breached the terms of the Tenancy Agreement consequently compelling the 3rd and 4th Respondents to issue a Termination Notice dated 18th November 2024.

19. The 3rd and 4th Respondents also stated that the Tenant’s claim of the suit premises’ condition was unfounded and faulted the Tenant for failing to attach documentary evidence to prove the said allegations.

20. The 3rd and 4th Respondent urged this Tribunal to dismiss the Tenant’s Reference and Application dated 19th November 2024 and compel them to settle the outstanding arrears and comply with the terms of the Tenancy Agreement.

E. Issues for Determination 21. Having carefully perused the pleadings presented before this Honorable Tribunal by the parties. It is therefore my respectful finding that the issues for determination are as follows:i.Whether the Tenant’s claim as to the condition of the suit premises is legally justified.ii.Whether the Landlord’s Termination Notice dated 18th November 2024 is valid.

F. Analysis and Determination I. Whether the Tenant’s claim as to the condition of the suit premises is legally justified 22. Section 107 – 109 of the Evidence Act, Cap 80 of the Laws of Kenya provide for burden of proof. Section 107 and 109 stipulate that the party that wishes the court to make a determination on the existence of facts has the burden of proving their existence.

23. Section 108 on the other hand casts the incidence of burden on the party that would fail if no evidence was adduced in legal proceedings.

24. These provisions have been reinforced by courts in numerous cases. In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2005] 1 EA 334, the Court of Appeal held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”

25. The Tenant complained about the condition of the suit premises stating that they have leaking flash rooms that cause flashing difficulties, broken doors, poor drainage system cracked walls and loose ceilings and produced a snag list which was attached to its affidavit.

26. Even though the Tenant inspected the premises the court takes judicial notice that buildings sometimes have challenges akin the ones presented above and the tribunal finds that there is need for the landlord to either repair the said works if they are unable to follow up with the developer to do so failure to which the parties ought to take inventory of the works and the Tenant repairs the same and offsets from the rent.

II. Whether the Landlord’s Termination Notice dated 18th November 2024 is valid 27. Section 4 (2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya expressly specifies the criteria that a Landlord’s termination notice must meet to be considered valid. It stipulates that:“(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.”

28. The required form as set out under Regulation 4(1) of legal notice 19 of 1966. The words as expressed in the regulations are as follows:” (1) A notice under section 4(2) of the Act by a landlord shall be in Form A in the Schedule to these Regulations.”

29. For such tenancy notice to be considered valid, it must set out the reasons for termination and should not take effect prior to 2 months from the date of service as stipulated under section 4 (4) of the Act.

30. Section 7 of the Act provides for the various grounds on which a landlord may seek to terminate tenancy. Particularly section 7 (1) (b) allows a landlord to terminate the tenancy where the tenant has defaulted on paying rent for a period of two months after the same has fallen due or has persistently delayed in paying the rent. I will cite the exact words used in the Act for reference:“(b)that the tenant has defaulted in paying rent for a period of two months after such rent has become due or payable or has persistently delayed in paying rent which has become due or payable;

31. The legal position stipulated under the Act was reiterated in Manaver N. Alibhai T/A Diani Boutique v South Coast Fitness & Sports Centre Limited, Civil Appeal No 203 of 1994, where the court stated:“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not 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 specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The notice must also specify the ground upon which termination is sought. The prescribed notice in Form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice.

32. The 3rd Respondent issued a Notice of Termination of the Tenancy Agreement dated 18th November 2024. The reason for termination emanated from the Tenant’s failure to pay two months rent arrears of Kshs 140,000. The notice was to take effect within 30 days from the said 18th November 2024.

33. The Tribunal acknowledges the fact that the Tenant admitted to having outstanding rent arrears under paragraph 6 of their application dated 19th November 2024.

34. However, despite the 3rd Respondent’s Termination Notice meeting the threshold on the reasons for termination, the same is void in form based on the following reasons:i.it was not issued in Form A as mandatorily set out under Regulation 4(1) of legal notice 19 of 1966;ii.it was to take effect within 30 days rather than the statutorily stipulated period of 60 days; andiii.the 3rd Respondent did not require the Tenant to provide a written notice on whether or not the Tenant was willing to comply with the alteration of the terms of the tenancy within one month from the date of receipt of the notice of termination.

35. The Tribunal therefore finds the 3rd Respondent’s Notice of Termination to be invalid.

G. Orders 36. In the upshot, the Tenant’s Reference and Application dated 20th November 2024 are allowed in the following terms:a.The Landlord shall immediately serve a fresh termination notice that complies with the provisions of section 4 (1) of the Act;b.The Landlord and Tenant shall take inventory of all the works repaired and unrepaired and the Landlord shall repair the same to bring the property to merchantable quality.c.The Tenant shall continue to pay rent as agreed every month save for the outstanding arrears which shall be payable subject to agreement in B above as if the said repairs are not undertaken within the next 30 days from the date hereof the Tenant shall be at liberty to repair the same and offset from the arrears and remit any balance to the Landlord.d.All other claims are not supported by evidence specifically and not claimable.e.Each party shall bear its own costs.

HON A. MUMAMEMBERBUSINESS PREMISES RENT TRIBUNALRuling dated, delivered and signed at Nairobi on this 15th day of April 2025 in the Absence of Parties.HON A. MUMAMEMBERBUSINESS PREMISES RENT TRIBUNAL