[2021] KEBPRT 63 (KLR)
The court found that the landlord had properly served the notice to terminate tenancy on the tenant, and the tenant failed to oppose the notice or the application for eviction. According to Section 10 of Cap 301, where a tenant does not respond to a notice to terminate tenancy within the prescribed time, the notice...
Source-derived case information.
- Citation
- [2021] KEBPRT 63 (KLR)
- Parties
- Applicant: Benson Sironga; Respondent: Divinah Momanyi; Respondent: Pius Momanyi
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E020 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Eviction Application
- Outcome
- application allowed
- Legal Topics
- Termination of Tenancy, Eviction Orders, Service of Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Sironga
Applicant
Divinah Momanyi
Respondent
Pius Momanyi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Eviction Application
Legal Issues
- 1 Whether the landlord is entitled to an eviction order against the tenant based on the notice to terminate tenancy.
- 2 Whether the notice to terminate tenancy was properly served and has taken effect.
Ratio Decidendi
The court found that the landlord had properly served the notice to terminate tenancy on the tenant, and the tenant failed to oppose the notice or the application for eviction. According to Section 10 of Cap 301, where a tenant does not respond to a notice to terminate tenancy within the prescribed time, the notice takes effect as specified. The tribunal was satisfied that all procedural requirements were met, and the landlord's application for eviction was unopposed. Therefore, the landlord was entitled to the orders sought, including eviction and costs.
Court Disposition
application allowed
Orders
- The landlord's application dated 28th October 2021 is allowed as prayed.
- The landlord's reference dated 29th October 2021 is allowed with costs to the landlord.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. E020 OF 2021 (KISII)
BENSON SIRONGA........LANDLORD/APPLICANT
VERSUS
DIVINAH MOMANYI
PIUS MOMANYI...............TENANT/RESPONDENT
RULING
1. The Landlord’s/Applicant’s notice of motion dated 28th October 2021 seeks an eviction order against the Tenant from premises on plot No. 27 Keroka Township Market. The application further seeks police assistance in the enforcement of the orders sought and costs of the application.
2. The grounds upon which the application is brought are that;
a. The notice to terminate tenancy was issued on 9th July 2021.
b. That since the notice was issued, the Tenant has refused to meet the Respondent to renew the lease agreement or pay rent arrears.
c. That the Landlord has suffered heavy financial losses.
3. The application is supported by the affidavit of Benson Sironga. I have noted the contents. The only issue for determination is whether the Landlord/Respondent is entitled to the orders sought in his application dated 28th October 2021.
4. I have perused the record and do note;
a. That there is a notice to terminate the tenancy issued against the Tenant herein. The notice is the one dated 9th July 2021.
b. That the Tenant was served with the notice to terminate tenancy on 14th July 2021. The affidavit of service has been filed by one Mr Joseph Mogaka Moemi.
c. That the application herein was served upon the Tenant on 12th November 2021. An affidavit of service has been filed by one Mr Joseph Mogaka Moemi.
5. The Tenant has neither opposed the notice to terminate nor the application seeking to effect the said notice. I am satisfied that the Tenant was properly served and the Landlord’s application remains unopposed. The notice has in the circumstances taken effect.
6. Section 10 of Cap 301 provides as follows;
“Where a Landlord has served a notice in accordance with the requirements of section 4 of this Act, on a Tenant and Tenant fails within the appropriate time to notify the Landlord of his unwillingness to comply with such notice or to refer the matter to a Tribunal then subject to section 6 of this Act, such notice shall have effect from the date therein specified to terminate the tenancy or terminate or alter the terms and conditions thereof or the rights or services enjoyed thereunder.”
7. In agreement with the above provision, the Landlord’s notice to terminate tenancy therefore took effect from 1st October 2021 being the date therein specified. Consequently, I do find that the Landlord’s application dated 28th October 2021has merit and the same is allowed as prayed.
8. The Landlord’s reference dated 29th October 2021 is also allowed with costs to the Landlord, no useful purpose would be served by its retention at the Tribunal.
HON. CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL
Ruling dated, signed and delivered by Hon Cyprian Mugambi Nguthari this 10thday of December 2021 in the absence of the parties.
HON. CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL