[2021] KEBPRT 391 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 1031 OF 2020 (NAIROBI)

ELIZABETH TALIKI MULWA.........................................TENANT/APPLICANT

VERSUS

ANNAH KINYANJUI

ELIZABETH KINYANJUI

PAULINE GITHARA

FIRST CLOSE ENTERPRISE LIMITED.....LANDLORDS/RESPONDENTS

RULING

The Tenant/Applicant’s notice of motion application dated 22nd December 2020 makes the following prayers;

1. Spent.

2. That the Respondents be ordered to reopen the Applicant’s business premises, in default the Tenant be allowed to break in under the supervision of the OCS Muthangari Police Station.

3. That the Respondents be ordered to allow the Applicant unlimited access to her business and without any hindrances.

4. That the Respondent be restrained from locking and letting out the business premises to another Tenant.

5. That the Tenant be allowed to offset the outstanding rent of Kshs 23,000/- in instalments.

6. That the Landlords be restrained from howsoever interfering with the Tenant’s occupation and lawful enjoyment of the suit premises located at Kawangware Congo Stage shop No. 6.

7. OCS Muthangari to assist in compliance with these court orders.

8. Costs.

(I have for the purposes of brevity paraphrased the prayers in the Applicant’s application).

The grounds and the contents of the affidavit in support of the application may be summarized as follows;

1. That the Respondent’s actions of locking the business premises and increasing the rent from Kshs 6,000/- to Kshs 10,000 is causing the Tenant untold hardship.

2. That the Tenant’s arrears of Kshs 23,000/- up to December 2020 was due to the effects of covid – 19.

3. The threat to evict the Tenant is illegal.

4. That the Tenant is a protected Tenant.

5. That the Tenant has been in the Respondent’s premises for sixteen (16) years.

6. That the Respondents have locked the Tenant’s business premises since 17th December 2020.

The application is opposed. The Respondents have filed an affidavit sworn by one Michael Mutinda. I proceed to summarize the contents of the said affidavit as follows;

1. That it is the 4th Respondent who manages the suit premises on behalf of the 1st, 2nd and 3rd Respondents.

2. That the Tenant has never lodged any complaint with the 4th Respondent.

3. That the Tenant’s premises have never been locked but a letter of intention to increase rent has been given to the Tenant.

4. That since filing the instant case, the Tenant owes rent in the sum of Kshs 53,500/-.

5. That the financial rights of the Landlord’s must be taken into account.

Having summarized the cases for the respective parties, the following are the issues which in my humble view arise for consideration and eventual determination;

1. Whether the tenancy herein is a controlled tenancy.

2. Whether the notice to increase the rent from Kshs 6,000 to Kshs 10,000/- per month contravenes the provisions of Cap 301 of the Laws of Kenya.

3. Whether the threats to evict the Tenant by locking her business premises are illegal and in contravention of the provisions of Cap 301 of the Laws of Kenya.

4. Whether the Applicant/Tenant is entitled to the prayers sought in her application dated 22nd December 2020.

5. What is the fate of the Tenant’s complaint filed on 22nd December 2020?

On Issue No 1:

The affidavits filed by both parties recognize the existence of a Landlord/Tenant relationship between the parties. None of the parties have produced a written lease and it is safe to conclude that none exists. The tenancy herein is therefore a controlled tenancy within the meaning of section 2(1) (a) of Cap 301.

On Issues No 2 and 3

The Tenant/Applicant has annexed the notice to increase rent dated 1st September 2020. The notice seeks to increase rent from Kshs 6,000/- Kshs 10,000/- with effect from 1st November 2020. The notice is issued by the 4th Respondent who have in the replying affidavit confirmed that they are the agents of the 1st, 2nd and 3rd Respondents.

The notice is also admitted at paragraph 3(d) of the 4th Respondents replying affidavit. It is this notice that the Applicant contends is illegal.

Under section 4(2) of Cap 301 of the Laws of Kenya,

“A Landlord who wishes to terminate a controlled tenancy or to alter to 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 Tenant herein states that her monthly rent is Kshs 6,000/- a fact not disputed by the Respondents. The increment of rent from Kshs 6,000 /- to Kshs 10,000/- per month amounts to an alteration of terms and conditions of the controlled tenancy under section 4 of Cap 301. The Respondents are therefore obligated to adhere to the provisions of section 4(2) above. The notice to increase rent dated 1st September 2020 does not meet the requirements of section 4(4) for falling short of the two months requirement under the said section. The section is in the following terms;

Section 4 “No tenancy notice shall take effect until such date not being less than two months after the receipt thereof by the receiving party as shall be specified therein.”

The notice dated 1st September 2020 could therefore only be effective on 1st December 2020 and not 1st November 2020.

The notice is also defective for failing to adhere to the provisions of section 4(5) of Cap 301 in so far as it does not require of the Tenant to inform the Landlord in writing within one month after the date of receipt of the notice whether or not he agrees to comply with the notice.

Section 4(2) of Cap 301 requires that notices under that section should be in the prescribed form. The form referred to is form A of the schedule to the Act.

I find the notice dated 1st September 2020defective for want of mandatory form provided for under section 4(2) of Cap 301.

On the 2nd issue, I am not satisfied that the Respondents have threatened to evict the Tenant. Indeed, the Respondents have stated that they have not locked the Tenant’s premises. Why do I say this? At paragraph 3 of her supporting affidavit, the affidavit states that the Respondents locked her premises since 17th December 2020, the affidavit was sworn on 22nd December 2020.

On 5th May 2021 when the parties appeared (virtually) before the Tribunal, the Tenant stated; “I request that we be heard orally. I am being harassed by the agents. My house is locked. It was locked yesterday.”

The 4th Respondent responded “We have not locked the premises. No one is bothering the Tenant.”

One therefore wonders, if the premises were locked on 17th December 2020, when were they opened so that they could be locked again on 4th May 2021? The Tenant is not being truthful on this aspect.

On these issues, I therefore find that the notice to increase rent is invalid and of no effect. I also find that it has not been established that the Tenant has been threatened with eviction and or that her premises have been locked by the Respondents illegally or otherwise.

On issue No 4

Following from the above, I do make the following orders;

1. That the Respondents are hereby restrained from increasing the monthly rent from Kshs 6,000 to Kshs 10,000 or to any other amount in contravention of the provisions of Cap 301 of the Laws of Kenya.

2. That the Respondents are ordered to allow the Tenant/Applicant unlimited access to her business premises.

3. That the prayer for payment of rent arrears in instalments is declined, no sufficient reasons having been given for the grant of such an order.

4. That the Tenant having not denied being in rent arrears, each party shall bear its own costs of the application.

The Tenant’s Complaint dated 22nd December 2020

The Tenant’s complaint is brought under section 12(4) of Cap 301 which is in the following terms;

“In addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the Landlord or by the Tenant and may make such order thereon as it deems fit.”

The Tenant’s complaint is to the effect that;

“They (Landlord/Respondents) have locked my business premises, increased the monthly rent illegally and threatened to evict contrary to Cap 301 Laws of Kenya.”

I have already found that there is no evidence that the Tenant’s premises were locked by the Respondents, at most the Tenant is not clear on the issue. Though no orders were issued against the Landlord/Respondent to reopen the premises, the same, at least according to the Tenant were open until 5th May 2021 when she reported that the premises were locked “yesterday.” I therefore find no substance on this limb of the complaint and do hereby dismiss the same.

I have also found that the notice to increase rent is illegal, invalid, of no effect as it contravenes express provisions of Cap 301 (as explained above). I find merit in this contention by the Tenant/Applicant and her complaint succeeds on that limb.

The Tenant’s complaint dated 22nd December 2020 is therefore allowed in terms that the notice to increase rent is declared to be of no effect. The Tenant having succeeded partially, each party shall bear its own costs of the complaint dated 22nd October 2020.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling read and delivered virtually by Hon Cyprian Mugambi Nguthari this 2ndday ofAugust, 2021in the presence of Elizabeth Mulwa and in the absence of the other parties.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL