[2022] KEBPRT 16 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E402 OF 2021 (NAIROBI)

BONIFACE MUTUA NGUI....................................................................TENANT

VERSUS

CHRISTOPHER MUTHAMA MATHOKA....................................LANDLORD

DAMARIS KAMENDE MUTHAMA......................LANDLADY/APPLICANT

RULING

1. On or about 1st July 2021, the landlord herein issued a tenancy notice seeking to terminate the tenant’s occupation of a business premises situate on plot no. 4 along Machakos-Ngei Road with effect from 1st September 2021.

2. The grounds upon which termination is sought are that:-

“(a) That the landlords intend to renovate the premises,

(b) That the landlords intend to take possession of the premises for a period of one (1) year.

(c) That the landlords do not wish to renew the tenancy to the tenant.

(d) That the landlords intend to carry on business on the premises”.

3. The tenant filed a reference dated 11th August 2021 against the tenancy notice and did not file any other document in support thereof.

4. By a motion dated 6th September 2021, the landlord moved this Tribunal seeking for leave to enter upon and repossess the suit premises being plot no. 4, located along Machakos- Ngei Road, Machakos. He also sought for costs and expenses occasioned by and incidental to the entry and repossession against the Respondent.

5. The application is supported by the affidavit of the landlord of even date and the grounds on the face of the application. It is the landlord’s case that he and the tenant had a lease agreement which expired in 2003 and was not renewed.

6. In the month of November 2020, the landlord informed the tenant verbally of his intention to terminate tenancy and take possession of the premises. In March 2021, he issued a one (1) month notice which was subsequently declared invalid in BPRT No. 160 of 2021. It is after that, that the current notice was issued.

7. The tenant wrote a letter of objection to the said notice on 12th July 2021 marked ‘CMM2’ and subsequently filed the instant reference.

8. According to the landlord, no reasons have been given in the reference and as such no triable issues exist. The tenant did not however vacate the suit premises.

9. The landlord deposes that he would wish to take over the premises for a period exceeding one year and make appropriate renovations as well as improvements for purposes of running a business therein.

10. It is the landlord’s case that the tenant will not be prejudiced as he will lease other premises for his business and in the event of failure to give vacant possession, the applicant would be extremely prejudiced as the suit premises belong to the family which required to renovate it and run its own business to elevate its economic stability.

11. The application is opposed through the tenant’s replying affidavit sworn on 11th November 2021 wherein it is deposed that judgment in Tribunal case no. 160 of 2021 was delivered on 17th June. It is shortly after that judgment that the landlord served the second notice which is subject matter of the instant case.

12. As such the tenant contends that the tenancy notice is null and void ab initio in view of section 9 of Cap. 301 which stipulates that no notice to terminate tenancy can be issued until after expiry of twelve months from the date of determination of a reference.

13. The landlord filed a further affidavit annexing a copy of bills of quantities for proposed renovation works marked ‘CMM1’.

14. The application was ordered to be canvassed through written submissions but only the landlord complied.

15. I am now required to determine the following issues:-

(a) Whether the tenancy notice dated 1st July 2021 is valid or not,

(b) Whether the landlord is entitled to the orders sought-

(c) who is liable to pay costs?

16. There is no dispute that prior to the tenancy notice under consideration, the landlord had issued another termination notice which became the subject matter of Nairobi BPRT No. 160 of 2021. The said notice was dated 1st February 2021 and was expressed to take effect on 1st March 2021. The grounds for termination were that on termination of the tenancy, the landlords intended to occupy the said premises for a period of more than one year for the purposes of a business to be carried out by them.

17. The notice was opposed and on 17th June 2021, Hon. Cyprian Mugambi Nguthari (Chairman) made the following orders:-

“I. The notice to terminate dated 1st February 2021 is hereby declared to be of no effect.

2. The tenant reference dated 18th February, 2021 is allowed with costs to the Tenant”.

18. The landlord served the current notice dated 1st July 2021 hardly two weeks thereafter giving the same reasons contained in the previous notice which was expressed to take effect on 1st September 2021.

19. The notice is opposed by the tenant for being offensive to Section 9 of Cap. 301 and therefore null and void.

20. Section 9(3) of Cap. 301, Laws of Kenya provides as follows:-

“(3) Where a Tribunal has made a determination upon a reference, no further tenancy notice shall be given in respect of the premises concerned which is based on any of the matters affected by the determination”:-

(a) In the case of an assessment of rent, until after the expiration of two years, or

(b) In any other case, until after the expiration of twelve months,

After the date of the determination unless the Tribunal, at the time of the determination specifies some shorter period”.

21. In the instant case, the Tribunal did not specify some shorter period than twelve months to warrant the landlord giving the second notice as he did. The reasons given in the second notice are the same ones contained in the previous notice and there having been no leave to do so, it is my firm view that the second notice is defective and invalid.

22. I have noted the landlord’s submission that Section 9 of Cap. 301 does not apply as the initial termination in BPRT No. 160 of 2021 was declared to be invalid due to the period of notice and not on merits and that the landlord was within his rights to issue a proper notice.

23. I do not agree with the landlord’s foregoing submission as the language of section 9(3) of Cap. 301 is very clear and leaves no room for second guessing. Had the legislature intended to allow giving of notice under a shorter period where the initial notice is found defective by the Tribunal, nothing would have been easier than to state so.

24. In the premises, I find and hold that the landlord’s notice dated 1st July 2021 is invalid and of no legal effect.

25. Arising from the foregoing holding, the landlord is disentitled to the reliefs claimed.

26. As regards costs, the same are in the discretion of the court but always follow the event unless for good reason otherwise ordered. I have no good reason to deny the Respondent/tenant costs of the reference and the application.

27. In conclusion therefore, the following final order commend to me:-

(i) The tenancy notice dated 1st July 2021 issued by the landlord to the tenant is invalid and of no legal effect.

(ii) The tenant’s reference dated 11th August 2021 is allowed with costs.

(iii) The Landlord’s application dated 6th September 2021 is dismissed with costs.

(iv) The tenant’s costs against the landlord are assessed at Kshs.25,000/- to be deducted from the rent account if not paid within the next Thirty (30) days hereof.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 1ST DAY OF APRIL 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Wesonga for the Landlord

Tenant present in person