[2021] KEBPRT 172 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 49 OF 2019 (KAJIADO)

EUGENE MAKOKHA.......................TENANT/1ST APPLICANT

MARYSTELLA MORANGA............TENANT/2ND APPLICANT

VERSUS

FRED OKINYI MAKAMARA........LANDLORD/RESPONDENT

RULING

1. The Tenant’s/Applicant’s notice of motion dated 24th July 2019 sought the following orders;

a. That the Landlord/Respondent be restrained from illegally evicting the Tenants from the suit premises known as room number G8 situated at Maks Business Centre situated in Rongai Kajiado County pending the hearing and determination of this application.

b. That the OCS Rongai Police Station to ensure compliance with the court orders.

c. That the Landlord/Respondent be ordered to facilitate installation of prepaid meters on the suit premises known as room No. G-8 situated at Maks Business Centre, Rongai, Kajiado County.

d. Costs.

2. The application is supported by the affidavit of Eugene Makokha which I summarize as follows;

a. That the Applicants took possession of the suit premises vide an agreement of lease dated 10th January 2014(amended to 2015).

b. That upon taking possession, the Applicants greatly improved the suit premises and more particularly as set out under paragraph 5 of the Applicant’s affidavit.

c. That the suit premises has incessant challenges on electricity connection which exposes the Tenant’s to losses due to the perishable nature of their business products (meat).

d. That the suit premises is poorly drained of rain water and sewerage.

e. That the Landlord/Respondent has neglected the security within the business premises leading to theft incidents.

f. That instead of resolving the issues raised above, the Landlord has illegally threatened to evict the Tenants.

g. That the Tenants are not in any rent arrears.

3. The application is opposed. The Respondent has filed an affidavit sworn on 19th August 2019 and which summarized is as follows;

a. That the affidavit of Eugene Makokha is irregularly on the record and should be expunged forthwith together with its annextures.

b. That the Landlord is entitled to terminate the tenancy on account of non payment of rent by the Tenant.

c. That the intended eviction is proper, legal and sanctioned by the lease agreement between the parties.

d. That the Tenant delayed in paying the rent of June and July 2019.

e. That the Landlord has provided minimum security measures at the premises. Tenants who wish to take up further measures cannot bill him for the same.

f. That the premises is well drained, there is no municipal drainage near the property contrary to the averments of the Tenant in his affidavit.

4. The Applicants’ further affidavit sworn on 26th September 2019 may also be summarized as follows;

a. That the inclusion of the name of Elizabeth Njeri Chege in the application is erroneous.

b. That whereas individual Tenants have sub-meters that record individual consumption, the overall consumption as far as the Kenya Power and Lighting Co. Ltd is concerned is billed under one name.

c. That the problem with the electricity bills emanated from one of the Tenants, Galaxy Lounge that had accumulated huge rent arrears.

d. That the eviction notice issued by the Landlord to the Tenant is irregular and unlawful.

e. All sub-meters are not recognized by KPLC.

f. That the Tenant has always settled all KPLC payments without a problem.

g. That the rent of June, July 2019 was purposely delayed as the Landlord had not met specific demands of the Tenants.

5. The parties have filed written submissions in support of their respective positions. I have read and considered the same in writing this ruling. From the pleadings and the submissions of the counsel for the parties, the following issues arise for determination.

a. Whether the tenancy between the parties herein is a controlled tenancy.

b. Whether the notice to vacate issued by the Landlord/Respondent to the Tenant and dated 16th July 2019 is a valid notice under section 4(2) of Cap 301.

c. What is the status of the parties herein vis-à-vis the lease agreement dated 10th January 2014 (amended to 2015).

d. Whether the Applicants are entitled to the orders sought in their application dated 25th July 2019.

6. On Issue (a)

a. The lease agreement between the Applicants and the Respondent is the one dated 10th January 2014(amended to read 2015). The said agreement is for a period of five years commencing 15th January 2015. The lease period being for the period of five years and the agreement being in writing, then it is my finding that the agreement herein places the tenancy between the parties within the meaning of a controlled tenancy as defined under section 2(a) 1 of Cap 301 which is in the following terms;

“Controlled tenancy means a tenancy of a shop, hotel or catering establishment;

a. ……………

b. Which has been reduced into writing and which

c. Is for a period not exceeding five years.”

7. On issue (b)

a. The notice to vacate issued by the Landlord to the Tenants/Applicants is the one dated 16th July 2019. It requires the Tenant to vacate the suit premises by 31st July 2019. It instructive to note that the notice was issued during the pendency of the lease agreement. Tenancy notices are covered under section 4 of Cap 301 which where relevant provides 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.

4(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.

4(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 provided that;

(iii) The parties to the tenancy may agree in writing to any lesser period of notice.

b. The notice issued by the Landlord on 16th July 2019 is not in the prescribed form as required by the law. The prescribed form is form A provided for in the schedule.

c. I also note that the period of the notice is fourteen days or thereabouts (16th July 2019 to 31st July 2019). I have not seen any evidence in writing that the parties agreed to the shorter notice period of fourteen (14) days as per the proviso under section 4(4) (iii) of Cap 301.

d. I also find that the tenancy notice as issued does not comply with the provisions of section 4(5) to the extent that it does not require the receiving party to notify the requesting party within one month if the receiving party intends to agree with the notice.

e. In answer to this issue, I therefore do find that the notice to vacate issued by the Landlord/Respondent to the Tenants/Applicants and dated 16th July 2021 is invalid and contrary to the provisions and requirements of section 4 of Cap 301. It is of no effect.

h. On Issue (c)

a. The lease agreement between the parties herein was for a period of five years commencing 1st January 2015. This therefore means that the agreement came to an end on 1st January 2020 or thereabouts or on 31st December 2019 as suggested by the Landlord in his submissions.

b. I have noticed that the Tenant is no longer in possession of the premises. The Tenant in their submissions have stated at page 3 paragraph 4;

“That the Tenants therefore paid all rent arrears and to date they are up to date with their financial obligations but they are still unable to utilize the suit premises from October 2019 as major issues remain unresolved.”

c. At page 5 paragraph 1, the Tenants in their submissions have stated;

“That the Tenants were forced to close shop since October 2019 especially due to lack of electricity and proper drainage.”

It is important to note at this point that the Tenants have not shown any evidence that the Respondent/Landlord closed down the suit premises. I have already stated that the lease agreement between the parties expired by effluxion of time on or about 31st December 2019/1st January 2020. This lease agreement had run its course and there is evidence from the Applicants themselves that they have not been in possession of the suit premises since the expiry of the lease agreement.

d. I have also not seen any evidence that the Tenants/Applicants have paid any rent to the Landlord/Respondent after the expiry of the lease. There is further no evidence that the lease agreement was extended by the parties. It is not within the powers of the Tribunal to resurrect a tenancy which has run its course and has terminated by effluxion of time.

e. In the case of Brand City Limited Vs United Housing Limited [2016] eKLR, the court stated;

“As rightly submitted by the Defendant, the lease between the parties was for a fixed term. It was to expire by effluxion of time unless earlier terminated on account of breach. The Defendant was not under any obligation to serve a notice of termination upon the Plaintiff. The issue of the notice served upon the Defendant being inadequate or insufficient does not therefore arise.”

f. In the case of Kasturi Limited Vs Nyeri Wholesalers Ltd [2014] eKLR, the Court of Appeal stated;

“A Tenant cannot impose or force himself on a Landlord. In the instant case, when the lease between the parties expired, it was incumbent upon the Appellant to give vacant possession.”

9. In conclusion, I do find that the notice to vacate served upon the Tenant was invalid, the tenancy herein being a controlled tenancy. But the invalidity of the notice is to the extent and in the context of the lease agreement between the parties. This finding could only have benefitted the Tenant during the life of the lease agreement. After the expiry of the lease agreement on or about 31st December 2019, the validity of the notice became irrelevant/moot.

10. I further find that there does not exist the relationship of a Tenant and Landlord between the parties herein and no useful purpose would be served in hearing the reference by the Tenant.

11. The Tenant’s reference dated 25th July 2019 and the notice of motion of the same date are hereby dismissed with costs to the Respondent.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 21ST OCTOBER 2021 IN THE PRESENCE OF MISS SIRMA FOR THE TENANTS AND MR MHECHE FOR THE LANDLORD.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL