[2021] KEBPRT 330 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 42 OF 2021 ( NAIROBI)

DANIEL SIMIYU................................................................................................................TENANT

VERSUS

DAVID MAGU WAMBIRI...........................................................................................LANDLORD

JUDGEMENT

The Landlord herein states that he issued the tenant with a termination notice dated 1st September, 2020 and which was to take effect on 1st November, 2020. Upon the expiry of the notice period the Landlord filed a compliant on the 16th December, 2020 seeking eviction orders against the Tenant.

The tenant upon being served instructed an advocate to act on his behalf. He filed an application seeking to enlarge time within which to file a reference challenging the termination notice. The parties compromised the application by recording consent to allow the application. The tenant therefore filed the reference dated 12th January, 2021.

The Landlords complaint and the tenant’s reference were heard simultaneously and form the subject of this judgement.

The grounds for issuing the termination notice are indicated, ‘that the tenant has persistently delayed in paying rent when due and payable”

The tenant has opposed the termination notice vide the aforementioned reference. The parties filed their respective witness statements and documents which they sought to rely on. It was mutually agreed that the statements be adopted and parties do file their submission. Both parties complied.

The parties do not dispute to having entered into a lease which was reduced into writing sometimes in August 2018. The tenant points out that the Landlord has had personal vendetta against him. He states that he had disconnected water from his premises sometimes in 2019 and that it took the intervention of this Tribunal to have the water reconnected.

The tenant states that the Tribunal had condemned the Landlord to pay costs for that particular reference and that did not augur well with him. The present termination notice and complaint according to him is a culmination of the Landlord’s vengeance against him. It is worth noting that the tenant did not attach any documentation to prove the existence of the reference filed earlier.

As stated earlier, the Landlord has sought to terminate his tenancy relationship with the tenant due to the persistent default in rent payment. The tenant has not denied to having accrued rent arrears. In his defence he has stated that he was unable to operate his business from the demised premises since there were ongoing construction along Ngong Road. He has further stated that the advent of the Covid 19 pandemic worsened the situation.

The issues for determination shall be as follows:

a. Whether there was default in paying rent

b. The validity of the termination notice.

c. Whether there was default in rent payment?

A mere perusal of the pleadings filed by the parties in this reference indicates that the tenant had fallen into rent arrears. He has admitted this in his submissions and pleaded with the Landlord to apply gloves instead of bare knuckles when demanding for rent arrears.

The validity of the termination notice.

The crux of the dispute between the parties herein is on the validity of the termination notice. The tenant has challenged this from several fronts to wit: the effect of the Tribunal’s stamp on the validity of the termination notice and whether the Landlord served the said termination notice.

Section 4 of the Landlord & Tenant (Shops, Hotels & Catering Establishments) Act explicitly provides that there can be no termination and alteration of the terms and conditions of a controlled tenancy other than provided therein. The termination notice issued by the Landlord was issued as per the provisions of Section 4(2) of the Act.

The tenant has insisted that the termination notice had to eb registered with the Tribunal. He has however not provided any statutory or case law provisions in support of this position. I have had to look at the sample Form A as provided under the regulations and the same do not require a copy to be deposited with the Tribunal. The termination notice issued by the Landlord therefore complied with the provisions of the Act.

Turning to the issue of service, I will at this juncture point to the provisions of section 4(6) of the Act which state as follows:

A tenancy notice may be given to the receiving party by delivering it to him personally, or to an adult member of his family, or to any other servant residing within or employed in the premises concerned, or to his employer, or by sending it by prepaid registered post to his last known address, and any such notice shall be deemed to have been given on the date on which it was so delivered, or on the date of the postal receipt given by a person receiving the letter from the postal authorities, as the case may be.

The tenant has denied being ever served with the termination notice. However, one Paul Munyasia Simiyu swore an affidavit on 6th January, 2021 that he was cleaning the shop when a gentleman approached him and asked for the tenant’s contacts. He would later learn that the process server had indicated that he had served a termination notice upon him. I am not convinced by this explanation. It is unsatisfactory and leaves a lot to be desired.

It would appear to me that the tenant was served with the termination notice but opted to do nothing. He only swung into action when the Landlord commenced the eviction process. He had ignored the smoke signals and sensed danger when he saw the flames.

The tenants alleged that the notices to terminate were done in bad faith and malice. Other than a mere statement of above, the tenants have not placed any material before me in support of their allegations, I therefore dismiss the same.

I do therefore find that the notices to terminate tenancy by the landlord in this case are valid as the landlord has satisfied the requirements of section 7(1)(b) and section 4(5) of CAP 301 Laws of Kenya

The tenancy ended when the termination came to effect as it is provided for underSection 4 (4) and Section 10 of the Act and the notice. This crystallized the Landlord’s right to take over possession of the premises.

FINAL ORDERS.

As must be clear from the foregoing legal provisions and the reasons given hereinbefore, it is hereby ordered that; -

1. The Tenant’s reference dated 12th January 2021and filed in the Tribunal on 13th January, 2021is hereby dismissed.

2. 2. The Landlord’s notice dated 1st September, 2021is allowed.

3. The costs of this reference are awarded to the Landlord to be borne by the tenant assessed at Kshs. 20,000/

4. The Tenant do vacate the premises and surrender possession to the Landlord immediately.

5. The OCS Riruta Satelitte Police station to ensure compliance of order 3 above

It is so ordered.

JUDGMENT SIGNED DATED & DELIVERED THIS 24TH DAY OF AUGUST 2021.

HON PATRICIA MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Kinoti holding brief for Mr. Kinyanjui for the Landlord

No appearance for the Tenant