[2021] KEBPRT 89 (KLR)
The Tribunal found that the landlord's notices for termination and rent increment did not comply with section 4(2) of Cap. 301, which mandates issuance of a standard notice in the prescribed form specifying the grounds for termination or alteration. The Tribunal held that such non-compliant notices are null and void...
Source-derived case information.
- Citation
- [2021] KEBPRT 89 (KLR)
- Parties
- Applicant: Daniel Kinyanjui; Applicant: Pauline Wanjiru; Respondent: Lawrence Warari
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E524 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction and Reference
- Outcome
- application and reference allowed
- Legal Topics
- Controlled Tenancy, Termination of Tenancy, Rent Increase Notices, Injunctive Relief, Statutory Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kinyanjui
Applicant
Pauline Wanjiru
Applicant
Lawrence Warari
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction and Reference
Legal Issues
- 1 Whether the landlord's notices for termination and rent increment complied with section 4(2) of Cap. 301, Laws of Kenya.
- 2 Whether the tenants are entitled to injunctive relief restraining the landlord from interfering with their occupation and enjoyment of the premises.
- 3 Whether the landlord's actions amounted to illegal eviction or unlawful rent increment.
Ratio Decidendi
The Tribunal found that the landlord's notices for termination and rent increment did not comply with section 4(2) of Cap. 301, which mandates issuance of a standard notice in the prescribed form specifying the grounds for termination or alteration. The Tribunal held that such non-compliant notices are null and void and cannot be used as a basis for terminating the tenancy or increasing rent. The Tribunal further applied the principles in Giella v Cassman Brown, finding that the tenants had established a prima facie case, would suffer irreparable harm, and that the balance of convenience favored them. Consequently, the Tribunal allowed the tenants' application and reference, restraining...
Court Disposition
application and reference allowed
Orders
- The landlord's notices for termination and increment of rent are dismissed.
- The tenants' application dated 21/9/2021 and the accompanying reference are allowed in terms of prayers 3, 4 and 5 with costs.
Full Case Text
Judgment text and source record
57 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. E524 OF 2021 (NAIROBI)
DANIEL KINYANJUI....................................................1ST TENANT/APPLICANT
PAULINE WANJIRU..................................................... 2ND TENANT/APPLICANT
VERSUS
LAWRENCE WARARI................................................RESPONDENT/LANDLORD
RULING
1. Through a motion dated 21st September 2021, the tenants moved this Tribunal seeking in pertinent part, an order of injunction to restrain the landlord from interfering with their quiet occupation and lawful enjoyment of the suit premises located at Kawangware.
2. They are further seeking that the landlord be prohibited from increasing rent from Kshs.16,000/- to Kshs.45,000/- pending hearing and determination of the suit.
3. The application is supported by the affidavits of the 1st Applicant sworn on 21st September 2021 and 5th October 2021 and the grounds on the face of the application.
4. The dispute herein is premised upon notices annexed to the replying affidavit of the landlord sworn on 30th September 2021.
5. The first notice is in form of a terse letter addressed to the tenant as follows:-
“Dear Tenant……………
Much thanks for having settled in the shop since the time immemorial todate.
However, I now write to give you a three months payable notice i.e 1st October 2021 to December 31st 2021 to vacate the shop so as to pave way for further development.
Yours Faithfully,
Signed
Lawrence Warari
Landlord”
9. The second notice is indicated to have been issued on 2nd September 2021 and is in the following terms:-
“Dear Tenant
REF: HOUSE RENT INCREAMENT
I have thoroughly considered the location of your business, the size of your house, the rent payable by other tenants along the same road and other road around and I felt there is need to hike your house rent. Also other things I have considered are land rates and monthly income tax etc.
I therefore felt that there is need what so ever to increase house rent from the current payable to Kshs.45,000/- per month with effect from 1st November 2021 thus giving you a sixty days notice to consider the same before you start paying or not.
Thanking you in advance for your co-operation.
Yours Faithfully Landlord.
Signed
Lawrence Warari”
10. The tenants complaint is that the landlord wanted to evict them with the sole intention of increasing rent exorbitantly for his selfish interests which was illegal and contrary to Cap. 301, Laws of Kenya.
11. The Tenants contend that they ought to be protected against the illegal activities of the landlord. They had no rent arrears and had occupied the suit premises for 7 years.
12. According to the tenants, the proposed termination of their tenancy in default of increment of rent was unjustified and will affect their livelihoods and business as they could not raise the exorbitant rent.
13. The tenants contend that they have heavily invested in the suit premises and stood to suffer loss and damage unless this Tribunal intervened.
14. The Landlord on the other hand confirms that the tenants have occupied the premises since 1st November 2015 and were not in any rent default for the entire period.
15. He states that the premises were in bad condition and required major renovation/repair to enable the tenants peaceful enjoyment while carrying out their business.
16. He therefore issued a three (3) months notice to the tenants to vacate from 14th September 2021 up to 31st December 2021 as required by law to enable proper, safe and major renovation based on assessment of costs marked X2.
17. The tenants were not willing to vacate the premises and continued to occupy the same as they paid less rent which had never been adjusted since they took possession.
18. In a further affidavit, the tenants state that they had already renovated the premises at a cost of Kshs.516,200/- and it was in a good condition and the landlord only wanted to lease the same to other tenants at a higher rent.
19. The tenants challenge the landlord’s notices as being illegal and they were not willing to pay the increased rent. The reason for renovation advanced by the landlord is said to be a mere excuse to unfairly evict the tenants.
20. I am now called upon to determine whether to allow or refuse the tenant’s application and reference as they both raise the same issues. I am further called upon to determine who is liable to pay costs.
21. I have looked at the notices issued by the landlord and agree with the tenants that they are not in compliance with section 4(2) of Cap. 301, Laws of Kenya. The Act requires issuance of a standard notice whenever a landlord wishes to terminate tenancy. The notices being null and void cannot be the basis of increment of rent or termination of tenancy.
22. In this regard, I rely on the decision of the Environment and Land court in the case of Fredrick Mutua Mulinge t/a Kitui Uniform – vs- Kitui Teachers Housing Co-operative Society Limited (2017) eKLR where the decision in Manaver N Alibhai t/a Diani Boutique – vs- South Coast fitness and Sports Centre Limited Civil Appeal No. 203 of 1994 was cited with approval as follows:-
“ 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 having writing or not the tenant agrees to comply with the notice”.
23. Guided by the said case and several other decisions reproduced therein, I am convinced beyond any peradventure that the tenants have established the principles espoused in the Locus Classicus case ofGiella – vs- Cassman Brown & Co. Ltd (1973) EA 358 and are entitled to the orders sought in the application and the accompanying reference.
24. The upshot is that the application and reference is allowed on the following terms:-
(a) The Landlord’s notices for termination and increment of rent are hereby dismissed.
(b) The tenant’s application dated 21/9/2021 and the accompanying reference is allowed in terms of prayers 3, 4 and 5 with costs.
(c ) The Landlord shall be at liberty to serve a proper notice (if need be).
It is so ordered.
DATED, SIGNED AND DELIVERED THIS 10TH DAY OF DECEMBER 2021 VIRTUALLY.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
In the presence of:
1st Tenant
Landlord