[2021] KEBPRT 460 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

BPRT 1050 OF 2020 AT NAIROBI

DUNCUN OUMA OCHANDA T/A KEY SHIFT PROMOTIONS.................TENANT

VERSUS

MINISTRY OF WATER DEVELOPMENT WELFARE AND

SPORTS ASSOCIATION...........................................................................LANDLORD

RULING

The Landlord’s contested notice to terminate tenancy is found in the notice dated 21st December 2020. The ground upon which the termination was sought is expiry of the lease agreement.

The Tenant on 28th December 2020 filed a reference referring to the Tribunal a complaint relating to:

“Termination of tenancy by the Landlord via the Notice of termination dated 21st December, 2020 before the expiry of the lease term of 10 years.”

The Respondent failed to enter appearance in this matter despite being severally served as evidenced by the Affidavits of service filed.

On17th March, 2021,upon this matter coming for the hearing of the Reference, there was no appearance on the part of the respondent. The Tenant/Applicant testified and adopted his Supporting affidavit dated 28th December, 2020 together with the annexures thereon.

From the evidence adduced by the Tenant/Applicant, it is not in doubt that the parties herein entered into a lease agreement which commenced on 26th August, 2015 and was expected to end after 10 years.

In determination of the subject matter, it is pivotal to determine whether the tenancy herein falls under the ambit of controlled tenancy as the same is tied with whether this tribunal is clothed with the requisite jurisdiction. In the first instance, Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 defines a controlled tenancy as a tenancy of a shop, hotel or catering establishment—

(a) which has not been reduced to writing; or

(b) which has been reduced into writing and which—

(i) is for a period not exceeding five years; or

(ii) contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof; or

(iii) relates to premises of a class specified under subsection (2) of this section:

Provided that no tenancy to which the Government, the Community or a local authority is a party, whether as landlord or as tenant, shall be a controlled tenancy;

In this regard, the subject tenancy relates to a premise used as a canteen. It therefore requires no belaboring to determine that the subject canteen falls within the purview of Section 2(b)(iii).

Secondly, the lease entered by the parties herein provided in their terms of lease under Clause 6 that:

“This contract can be terminated by each party by giving reasonable notice in any caswe not less than three(3) Months.”

In determining the meaning of controlled Tenancy, the court of Appeal in Khalif Jele Mohamed & another v Republic & another [2019] eKLR stated:

“In the present case, the termination clause was a blanket provision that gave liberty to the parties to terminate at any time and for any reason within the 6-year term of the tenancy. In effect, it could be invoked by either party, and either party could terminate the tenancy within the first 5 years of the term or even 5 years after commencement of the tenancy. In effect, as worded, the termination clause did not exclude termination of the tenancy within the first 5 years of the term. It was in fact permissive of termination within 5 years from the commencement of the tenancy. To that extent we are satisfied that the termination as worded brought the tenancy within the meaning of a controlled tenancy under Section 2 (1)(b)(ii) of the Act. Consequently, the tribunal was clothed with jurisdiction over the matter.”

The tenancy herein can therefore be safely held to be controlled tenancy, making this tribunal weel clothed with the jurisdiction to hear and determine the dispute herein.

The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 is intended to protect tenants from the exploitation and eviction from business premises by the landlord without due process and procedures laid down for termination of tenancy. It is also noteworthy to point out the supremacy of the Act when compared with other statutes applicable on tenancies derives from Section 2 (3) which implies that where there is a controlled tenancy, all other statutes relating to the matter and in conflict with the Act should be disregarded.

The second issue herein would be whether the tenancy was justifiably terminated by the Landlord/respondent. The procedure of terminating a controlled tenancy is contained in the Act.Under Section 4(1) thereof, termination of controlled tenancies can only be undertaken under the purview of the Act as follows:-

“4(1) Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall 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 following provisions of this Act.

(2) A landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form. ”

The Act also dictates that the notice must indicate the reasons for the proposed termination of tenancy and must also give a period of one month within which the tenant may voice his objection (if any) to the proposed termination. This requirement is contained in Section 4(5) which provides inter alia:-

“A tenancy notice shall not be effective for any of the purposes of this Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration or reassessment concerned and requires the receiving party to notify the requesting party in writing, within one month after the date of receipt of the notice, whether or not he agrees to comply with the notice.”

The Applicant/Tenant herein testified and submitted evidence in proof of the fact that the Landlord/Respondent was served with a termination notice dated 21st December, 2020. The Applicant/Tenant received the said notice on 24th December, 2021. The termination Notice gave the Applicant/Tenant Seven days to vacate the premises. This is an outright contravention of the termination procedures. In absence of any contrary evidence, the Tenant/Applicant proofed their case and the balance of probability tilts in his favour.

Accordingly, for the reasons set out above, I hereby make determination and direct as follows:

1. The Applicant/Tenants reference is merited as filed. As such, the same is allowed as prayed.

2. The Notice of termination by the Landlord/respondent dated 21st December, 2020is illegal and the same is of no legal effect.

Ruling dated and delivered virtually by Hon P. May on 11th June 2021 in the absence of the parties.

HON. PATRICIA MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL