[2022] KEBPRT 79 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E044 OF 2021 (MOMBASA)

DAVID MALLIETA................................................................APPLICANT/TENANT

VERSUS

FEISAL ABDALLA RAMADHAN............................RESPONDENT/LANDLORD

RULING

1. The tenant herein moved this Tribunal through a motion dated 31st August 2021 seeking for a prohibitory order restraining the Respondent from interfering with his quiet enjoyment of the tenancy in the demised premises pending the hearing and final determination of his complaint.

2. The application is supported by the tenant’s affidavit of even date and the grounds on the face thereof.

3. The applicant also filed a reference complaining that the landlord/ Respondent had served him with a defective notice of termination of tenancy vide a general letter dated 7th June 2021. He also complains of electricity disconnection without reasonable grounds under Cap. 301, Laws of Kenya. He seeks the same orders as in the application.

4. The tenant has been running business in the suit premises since the year 2003 whose caretaker is the landlord’s brother one Muhammed Baghazal who also collects rent. No rent payment receipts are issued to the tenant according to him.

5. The tenant denies being in rent arrears and save for the demand letter dated 7/6/2021, no other notice or demand had been made to him in that regard.

6. The tenant complains that the landlord’s notice is in the prescribed form as required by section 4(2) of cap. 301, Laws of Kenya. The letter is attached as annexture ‘A’.

7. The Respondent has filed grounds of opposition dated 11th October 2021 and a replying affidavit sworn on 14th October 2021. According to the Respondent, he owns L.R No. Mombasa/block XV1/684 where the suit premises is situate as per annexture ‘FAR1’.

8. The agreed rent for the suit premises is Kshs.30,000/- per month. He confirms having issued a 3 months notice to the tenant to vacate by 30th September 2021 on the grounds that the latter had defaulted in paying rent since June 2020 which had accumulated to Kshs.450,000/- as at 5th October 2021.

9. He however denies having disconnected electricity supply to the premises attributing it to Kenya Power and Lighting Co. Ltd (KPLC) on account of tenant’s default in paying bills amounting to Kshs.88,217 as per annexture ‘FAR3’.

10. The landlord deposes that he wishes to obtain possession for his own use to avoid losses from the tenant’s non-payment of rent.

11. According to the landlord, the defect in the notice is a technicality which should not defeat justice. He prays that the tenant be ordered to pay arrears of rent and settle electricity bill aforesaid before his eviction.

12. The tenant filed a supplementary affidavit sworn on 16th November 2021 stating that the rent payable for the demised premises is Kshs.25,000/- and not Kshs.30,000/- as deposed by the landlord. He also denies that KPLC disconnected electricity stating that the Respondent paid some people to do so.

13. He states that there was no advisory card by Kenya Power and Lighting Co. Limited after the disconnection and that he followed up with the company which distanced itself from the act. He states that the bill is incorrect and had raised a complaint with KPLC and told to pay what he thinks is his rightful bill as they investigate.

14. The application was directed to be disposed of by way of written submissions. Only the Respondent’s counsel complied with the said directions.

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

(a) Whether the tenant/applicant is entitled to the reliefs sought in the application and reference.

(b) Who is liable to pay costs of the suit?

16. It is not in dispute that the landlord served the notice dated 7th June 2021 by way of his advocates letter giving the tenant 3 months to vacate from the suit premises. Although the landlord admits that the notice is defective it is submitted that this cannot hinder this Tribunal from doing justice under Article 159 (2) of the Constitution of Kenya which mandates Courts to administer Justice without undue regard to procedural technicalities.

17. In the case of Fredrick Mutua Mulinge t/a Kitui Uniform -vs- Kitui Teachers Housing co-operative Society Limited(2017) eKLR, the Environment and Land Court cited with approval the decision in Manaver N. Alibhai t/a Diani Boutique – vs- South Coast Fitness and Sports Centre LimitedCivil Appeal No. 203 of 1994 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 the specified provisions of the Act. Those 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 receipts 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 writing whether or not the tenant agree to comply with the notice”.

18. The court further cited the decision in the case of Narshidas & Company Limited – vs- Nyali Air Conditioning and Refrigeration Services LimitedCivil Appeal No. 205 of 1995 where it was held that a notice not in conformity with the section 4(1) is void and of no effect in law. The decision in Lall – vs- Jeypee investments Ltd (1972) EA 512 was also cited where it was held that Cap. 301 requirements had to be construed strictly no matter how harsh the result and if the landlord does not give notice in the prescribed form, the same will be ineffectual and the landlord had to absolutely and completely comply with the requirement.

19. The notice given to the tenant in this matter is not in the prescribed form neither does it give the required duration for compliance as it is expressed to be immediate. No doubt it is defective and ineffectual for all purposes. This is not a procedural technicality as it goes into the substance of the legal requirements under Cap. 301, Laws of Kenya.

20. As to whether the tenant is entitled to the reliefs sought or not, I note that there is a dispute on the issue of rent. The landlord does not say how much rent is outstanding and the monthly rent payable appears to be in dispute. The landlord did not provide a rent book as required under section 3(3) of Cap. 301 and did not avail any affidavit by his brother one Muhammed Baghazzai who is said to be his rent collecting agent in respect of the suit premises.

21. In the premises, the issue of rent is required to be determined at the hearing of the main reference. It is therefore important to maintain the status quo in the meantime.

22. Having been served with a defective notice requiring him to immediately vacate the suit premises, the tenant was entitled to challenge it in this Tribunal and seek a quia timet injunction.

23. A quia timet injunction was defined in the case of Kwality Candies & Sweet Ltd – vs- Industrial Development Bank (k) Ltd (2005) eKLR at page 6-7/11 it was held as follows:-

“A quia timet action is not based upon hypothetical facts for the decision of an abstract question. What 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”.

24. In the premises the orders that commend to me in this matter are:-

(i) The application dated 31/8/2021 is allowed in terms of prayers 2 and 4 thereof.

(ii) The notice to vacate dated 7th June 2021 is declared defective and of no effect.

(iii) The issue of the rent in dispute shall go to full hearing under section 12 (4) of Cap. 301, Laws of Kenya.

(iv) Parties shall file and exchange witnesses statements, rent account statements and documents in support of their respective cases within the next Thirty (30) days hereof in readiness for hearing of the rent dispute.

(v) Costs of the application to the tenant.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY OF FEBRUARY 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Mbunde for the Tenant

Buika for the Landlord.