[2022] KEBPRT 849 (KLR)

Charles Munyua Ndungu t/a Jusomus Agencies Limited v Mwangi & another (Tribunal Case E528 of 2022) [2022] KEBPRT 849 (KLR) (Civ) (14 December 2022) (Ruling)

Neutral citation: [2022] KEBPRT 849 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E528 of 2022

Gakuhi Chege, Vice Chair

December 14, 2022

Between

Charles Munyua Ndungu t/a Jusomus Agencies Limited

Applicant

and

Charles Mwangi

1st Respondent

Sortmasters Investments Limited

2nd Respondent

Ruling

1. The tenant moved this tribunal through a complaint dated June 20, 2022 under section 12(4) of Cap 301, Laws of Kenya claiming that the respondents had issued an illegal and unprescribed notice requiring him to vacate the suit premises by June 30, 2022 . According to the tenant, the same was based on false and trumped up allegations.

2. The tenant simultaneously filed a motion of even date seeking for restraining orders against the respondents from interfering with his quiet and peaceful occupation and/or tenancy at the 1st respondent’s premises known as Lois Plaza, Room No 59, 4th floor, River Road/Accra Road junction, Nairobi pending hearing of the complaint.

3. The genesis of the dispute as can be seen from the foregoing pleadings is the impugned notice to vacate dated June 3, 2022 attached to the supporting affidavit of the tenant marked ‘exhibit 4’.

4. The said notice gives the tenant one (1) month effective from June 1, 2022 to vacate and give vacant possession of the space occupied by him on grounds that he was not cooperative and was creating unnecessary commotion in the property thereby disturbing the peace of other tenants. The notice was expressed to expire on June 30, 2022 by when the tenant had been directed to pay all rent in arrears as well as utility bills.

5. Fearing possible eviction from the suit premises, the tenant moved to this tribunal and obtained interim orders of injunction pending hearing inter-parteson August 3, 2022.

6. In opposition to the application and complaint, the 1st respondent/landlord filed a replying affidavit sworn on August 5, 2022 seeking to justify the said notice by alleging that the tenant was causing a lot of issues in the premises with his clients over unfinished work. He states that the impugned notice was properly issued and was justified, procedural and in accordance with the law due to the commotion and disturbances that the tenant was causing.

7. The 1st respondent relies on his notice dated June 7, 2022 which is not exhibited in disowning the one dated June 3, 2022 marked “exhibit 4” attached to the tenant’s supporting affidavit.

8. The further replying affidavit of the 1st respondent sworn on September 29, 2022 was filed out of time contrary to the orders of September 28, 2022 and is hereby struck out.

9. The application was directed to be canvassed through written submissions and both parties complied. I shall consider the submissions together with issues for determination set out below.

10. The issues for determination in this matter going by the pleadings are:-a.Whether the tenant is entitled to the reliefs prayed for in the application dated June 20, 2022 and the complaint of even date.b.Whether the notice to vacate dated June 3, 2022 served by the 2nd respondent upon the tenant is valid or not.c.Who is liable to pay costs?.

11. I will begin with considering the validity of the notice served by the 2nd respondent upon the tenant on June 3, 2022.

12. Section 4(2) of Cap 301, Laws of Kenya provides as follows:-.“A landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant any term or condition in or any right or service enjoyed by him under such a tenancy shall give notice in that behalf to the landlord in the prescribed form”(emphasis added).

13. The prescribed form under regulation 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Tribunal) (forms and procedure) Regulations is form A in the schedule to the regulations.

14. The notice to vacate issued by the 2nd respondent to the tenant on June 3, 2022 is not the prescribed notice under the Act and is therefore null and void. It only gives one (1) month as opposed to two (2) months stipulated under section 4(5) of Cap 301, Laws of Kenya.

15. In the premises, the tenant was justified in coming to this Tribunal to avoid possible illegal eviction and the reliefs sought herein are therefore deserving in line with the principles of granting a quia timet injunction espoused in the case ofKwality Candies and Sweets Ltd v Industrial Development Bank Ltd (2005) eKLR where it was held as follows at page 6-7/11. “A quia timet action is not based upon hypothetical facts for the decision of an abstract question. When the court has before it evidence sufficient to establish that an injury will be done if there is no intervention by the court, It will act at once and protect the rights of the party who is in fear and thus supply the need of what has been termed protective justice. It is a very old principle”.(citation from English case of Craicola Merthyh Co Ltd v Mayor Aldermen and Burgesses of SwanSea (1927) LR 235).

16. As regards costs, the same are in this tribunal’s discretion under section 12(1)(K) of Cap 301 Laws of Kenya but always follow the event unless for good reasons otherwise ordered. I have no reason to deny the tenant costs.

17. In conclusion, the final orders which commend to me under section 12(4) of Cap 301, Laws of Kenya on the application and complaint are as follows:-a.The tenant’s application dated June 20, 2022 and the complaint of even date is allowed with costs.b.The landlord and his agents, servants, employees, representatives or any other person claiming through him are restrained from evicting, harassing and/or in any other manner from interfering with the tenant’s quiet and peaceful occupation and enjoyment of the suit premises situate at Lois Plaza, Room No 59, 4th floor, River Road/Accra Road junction, Nairobi without adhering to the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 Laws of Kenya.c.The notice to vacate dated June 3, 2022 and any other subsequent notice issued upon the tenant on grounds of alleged lack of cooperation and creating unnecessary commotion in the suit premises is hereby declared invalid and of no legal effect.d.The tenant is awarded costs of the case assessed at Kshs 25,000/- to be defrayed against rent.It is so ordered.

RULING DATED,S IGNED & DELIVERED VIRTUALLY THIS 14TH DAY OF DECEMBER, 2022. HON.GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of:Mwaura for the RespondentsNo appearance for the Applicant