[2024] KEBPRT 522 (KLR)

Deegisat TV Services Limited v Hirani (Tribunal Case E244 of 2023) [2024] KEBPRT 522 (KLR) (12 March 2024) (Ruling)

Neutral citation: [2024] KEBPRT 522 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E244 of 2023

CN Mugambi, Chair

March 12, 2024

Between

Deegisat Tv Services Limited

Tenant

and

Mavji Hirani

Landlord

Ruling

Introduction 1. The tenants Application dated 26. 09. 2023 seeks the following orders;-a.That the Tenancy between the parties be declared a controlled tenancy.b.That pending the hearing of the suit, the tribunal be pleased to issue injunctive orders against the landlord restraining the landlord from effecting the notice of termination of tenancy dated 31. 8.2023. c.That pending the hearing and determination of this suit, the landlord be restrained from interfering in any way with the tenant’s quiet enjoyment of the suit premises.d.That the landlord be restrained from increasing the rent and service charge of the suit premises from the amount agreed at the beginning of the tenancy.e.The tenant’s Application dated 7. 2.2024 seeks similar orders to the one sought in his Application dated 26. 9.2023 save for the additional prayers that;a.That further to the initial rent amount being agreed at Kshs. 40,000/=, the Tribunal to determine and/or vary the rent payable by the Applicant/Tenant in respect of the controlled tenancy due to the exclusion of the usage of the external room by the landlord/Respondent by reducing the same by one third from February 2023 when the landlord took away the 3rd room illegally to date.b.That the tenant be compensated by way of damages for loss of tenancy of the 3rd room.

The Tenant’s depositions 2. In support of both motions, the Tenant has filed affidavits sworn on 28. 9.2023, 25. 1.2024 and 7. 2.2024 which I summarize as follows:-(a)that at the commencement of the tenancy, the parties agreed verbally that the monthly rent payable would be Kshs. 40,000/=.(b)that after each monthly mpesa payment, the tenant would notify the landlord through an sms or a whatsapp notification of payment.(c)that on 31. 8.2023, Counsel for the landlord served the tenant with an illegal notice terminating the tenant’s tenancy and to which Counsel for the Tenant responded to vide their letter of 20. 9.2023 indicating that the Tenant would not comply with the illegal notice.(d)that vide virtual exchanges in June 2023, the landlord notified the Tenant of his intentions to increase the service charge by an “excessive” amount of Kshs. 13,450/= while no new services were being added.(e)that the Tenant offered to pay Kshs. 5,000/= as service charge but the landlord declined.f.That the landlord has for a period of one year denied the tenant access to one external room after he took away the keys.g.That the landlord is aware that the Tenant conducts business in the suit premises and indeed the landlord has been the tenant’s client at some point.h.That the Tenant also uses the premises for a hotel, bed and breakfast business and there are other tenants carrying on similar businesses, in the premises, a fact well known to the landlord.i.That the tenant also carries out an engineering services business in the suit premises.j.That the rented premises has three rooms and is inclusive of an external room as the tenant operates various businesses in the premises.k.That the landlord locked the external room in February 2023 and never gave any reasons for his actions.l.That the landlord has rented the external room to another tenant and is already being paid for it.m.That the landlord should be restrained from illegally varying the service charge and rent as when he wants to.

The Respondent’s depositions 3. The Respondent’s replying affidavit sworn on 28. 10. 2023 may be summarized as follows:-a.That he is the registered owner of all that property known as Title No. Kwale/Galu Kinondo/1646 wherein he has constructed a block of residential apartments and one of the blocks on the ground floor is occupied by Mr. Nicholas Zani.b.That there is no landlord/tenant relationship between the Respondent and Deegisat TV Services Limited.c.That the apartment occupied by Mr. Nicholas Zani as the Respondent’s Tenant is for residential purposes and not a shop as defined under Cap 301 of the Laws of Kenya.d.That in the circumstances, the Tribunal lacks jurisdiction.

4. The Respondent has not responded to the tenant’s Application dated 7. 2.2024 but since the issues raised are similar, I will treat the Landlord’s affidavit sworn on 28. 10. 2023 as sufficient response to both Applications.

5. At the time of writing this Ruling, only the Tenant had filed its submissions, I have read the same and I will consider the said submissions in this Ruling.

Analysis and Determination 6. The issues that arise for determination in this Complaint and Application are in my view the following;-a.Whether the demised premises is RESIDENTIAL or a BUSINESS premises and whether therefore the Tribunal has jurisdiction to hear and determine this dispute.b.Whether the Tenant is entitled to the orders sought in his Application.c.Whether the Complaint raised by the Tenant can be determined by the Ruling herein and therefore what orders ought to issue in disposing of this matter.

Issue A: Whether the demised premises is RESIDENTIAL or BUSINESS premises and whether therefore, the Tribunal has jurisdiction to hear and determine this dispute 7. On 25. 10. 2023, the Tribunal made the following order;-“That the Tribunal’s Rent Inspector shall visit the suit premises and file a report within thirty (thirty) days hereof confirming the nature of activities being carried out therein and whether the premises are commercial/residential.”Pursuant to the above order, an inspection report was carried out by the Tribunal’s Rent Inspector and filed in court. The report concludes as follows;-“From my extensive observation, it is evident that the Tenant operates an office and the hotels for accommodation at the premises.”

8. The Tenant has stated in his affidavit that he carries out the works of Engineering services and a bed and breakfast facility at the premises. in support of his qualifications to offer Engineering services, the Tenant has annexed to his further affidavit, a diploma certificate from Jomo Kenyatta University of Agriculture and Technology. In support of his bed and breakfast hotel business, the tenant has annexed a clearance certificate from the department of Health Services, County Government of Kwale, a license under the food, drugs and chemical substances (food hygiene) Regulations and an online booking advertisement for the suit premises.

9. It is therefore clear that the Tenant does not use the premises for residential purposes but for business purposes. The parties have no written agreement in the absence of which it is difficult to tell for what purposes the premises was rented.In the absence of evidence contradicting the contents of the Inspection report and the affidavit evidence of the Tenant, I can only conclude that the premises is being used for commercial purposes under a controlled tenancy.

10. The landlord has also raised the issue that his tenant is one Mr. Nicholas Zani and not Deegisat TV Services Ltd. The Tenant has described himself as the director of the tenant and with the authority of the Tenant to swear the affidavit. The Respondent does not dispute that the said Mr. Nicholas Zani is a director of the Tenant herein and neither is there any evidence that indeed it is Mr. Zani and not the Applicant herein who is a Tenant of the Respondent, having it in mind that no written lease agreement exists as between the parties. I therefore do not find any merits in the Respondent’s argement that it does not recognize the Tenant as the “tenant”.

11. In this issue, it is therefore my finding that the Tribunal has the jurisdiction to hear and determine this dispute.

Issue B: Whether the Tenant is entitled to the orders sought in his Application 12. I have already found that the tenancy between the parties is a controlled tenancy and that settles the Tenant’s 2nd prayer in its Application dated 26. 7.2023.

13. The termination notice the tenant complains of is the one dated 31. 8.2023. I have perused the same and it is not the statutory notice provided for under Section 4(2) of Cap 301. It is therefore invalid and the Tenant is justified to complain against it.

14. The tenancy herein being a controlled tenancy, the landlord is obligated under Section 4(2) of Cap 301 to issue the mandatory statutory notice, this he has not done.

15. The tenant has also sought an order that the Respondent be restrained from increasing the rent and service charge. In this regard, the Tenant has stated that the agreed rent for the suit premises was Kshs. 40,000/= per month. The Tenant further states that this sum was inclusive of service charge though he was willing to pay service charge at the rate of Kshs. 5,000/= per month for service charge, I will direct that the Tenant continues to pay the service charge at Kshs. 5,000/= per month.

16. Can the landlord increase the rent from Kshs. 40,000/= to any other figure? I do not think so! The tenancy between the parties being a controlled tenancy, any increment in rent amounts to an alteration of the terms and conditions of the tenancy and therefore the relevant notice ought to be issued by the landlord to the tenant in terms of the provisions of Section 4(2) of the Act, Cap 301 of the Laws of Kenya.

17. Consequently, the Respondent is injuncted from increasing the rent without the sanction of the Tribunal.

18. The Tenant has further prayed that the Tribunal determines the rent payable for the suit premises having regard to the fact that the landlord took away one third of the premises since February 2023. Whereas the Tenant has stated that it pays the rent of Kshs. 40,000/= per month, there is no evidence that the Tenant now only occupies two thirds of the premises. Further, the Tenant has not provided any measurements for the various rooms in the demised premises to enable the Court to determine the rates payable for the premises allegedly taken away by the landlord.

19. A tenant who wishes to have the rent of a premises under a controlled tenancy assessed, is also required to give notice to the landlord in that behalf. In this regard, Section 4(3) of Cap 301 provides as follows;-“A Tenant who wishes to obtain a reassessment of the rent of a controlled tenancy or the alteration of any term or condition in or of any right or service enjoyed by him under such a tenancy shall give notice on that behalf to the landlord in the prescribed form.”The Tenant in this case, while desiring to have its rent reassessed, has not served the landlord with the notice mandatorily prescribed under Section 4(3) of Cap 301 and he cannot obtain any such orders for reassessment by way of an Application by notice of motion. This prayer therefore fails.

20. The Tenant has further prayed for an order of compensation for the loss of tenancy for the third room. I have not seen any material in support of this prayer and I am therefore unable to assess the damages payable as prayed. The prayer is therefore declined.

Issue C: Whether the Complaint raised by the Tenant can be determined by the Ruling herein and therefore what orders ought to issue in disposing of this matter. 21. The issues raised in the Complaint filed by the Tenant in this mater are the same issues raised in the Tenant’s notice of motion. They have therefore been sufficiently dealt with in terms of the findings in this Ruling and therefore concluded as such. The findings in the Ruling above fully cover the requirements of Section 12(4) of Cap 301 and therefore determine the Complaint as well.

22. In conclusion, the orders which commend themselves to me and which I hereby make are the following;-a.That the Respondent, his servants, agents and/or assigns are injuncted from in any manner acting on the notice to terminate tenancy or to vacate the suit premises dated 31. 8.2023. b.That the notice to terminate tenancy or to vacate the suit premises dated 31. 8.2023 is declared as of no effect and invalid.c.That the Respondent/landlord is injuncted from illegally increasing the rent payable for the suit premises from the agreed figure of Kshs. 40,000/= per month.d.That the Tenant will continue to pay the service charge of Kshs. 5,000/= per month.e.That the prayer for compensation in regard to the third room allegedly taken away by the landlord from the tenant is dismissed.f.That the tenancy between the parties is hereby declared a controlled tenancy.g.That each party shall bear their won costs.

RULING, DATED SIGNED AND DELIVERED VIRTUALLY THIS 12TH DAY OF MARCH, 2024HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Nicholas Zani the tenantIn the absence of the other parties