[2024] KEBPRT 333 (KLR)

Evance t/a Woodley Vine Agencies v Olive Joycare Estate & Property Managers Limited & another (Tribunal Case E503 of 2023) [2024] KEBPRT 333 (KLR) (11 March 2024) (Ruling)

Neutral citation: [2024] KEBPRT 333 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E503 of 2023

A Muma, Ag. Chair & J Rop, Member

March 11, 2024

Between

Oloo Evance T/A Woodley Vine Agencies

Tenant

and

Olive Joycare Estate & Property Managers Limited

Agent

and

Beth W Kabiru

LandLady

Ruling

A. Parties and their Representatives 1. The Applicant, Oloo Evance T/A Woodley Vine Agencies, is the tenant of the suit premises known as Shop No.3 on 209/6911 on Joseph Kang’ethe Road, Suna Road Junction within Nairobi (“the Tenant”).

2. The firm of MOB Law Advocates represents the Tenant in this matter.

3. The 1st Respondent, Olive Joycare Estate & Property Managers Limited is the agent of the suit premises (“the Agent”). The 2nd Respondent, Beth W. Kabiru, is the principal to the Agent and the proprietor of the suit premises and therefore the Landlady to that effect (“the Landlady”).

4. The firm of Nzakuva & Company Advocates represents the Landlady in this matter.

B. Dispute Background 5. The Tenant moved this Honorable Tribunal vide a Reference and Application both dated 24th May 2023. The Tenant sought, among other orders, the following from this Honorable Tribunal:i.To restrain the Respondents whether by themselves, their employees, servants or agents from unlawfully terminating the Tenancy and/or evicting the Applicant from the suit premises.ii.To order the Respondents to unlock the Business Premises and restore the electricity and water supply for the suit premises.

6. Having considered the Tenant’s Application, the Tribunal via a court Order dated 25th May 2023 ordered, among other orders, that:i.A temporary injunction be issued restraining the Respondents whether by themselves, employees, servants or agents from unlawfully terminating the tenancy and/or evicting the Applicant from the suit premises.ii.The Respondents to unlock the Business premises and restore the electricity and water supply for the Tenant’s shop.iii.The O.C.S of Kibra North Police Station or any officers seconded therefrom ensures compliance with the Orders.

7. Subsequently, the Landlady filed a Replying Affidavit dated 1st July 2023 in response to the Tenant’s Application and Reference dated 24th May 2023.

C. Tenant’s Claim 8. The Tenant’s Application dated 24th May 2023 is based on several grounds. These include the Landlady and her agent unlawfully depriving the Tenant of electricity and water supply, as well as harassing and frustrating the tenant by locking up the Business Premises and intending to unlawfully evict the Tenant.

9. The Tenant avers that they are in a controlled Tenancy that commenced on 1st December 2022 with a monthly rent of Kshs. 40,000 which he has diligently paid and is not in breach of the tenancy terms.

10. Further, the Tenant avers that despite his cooperation and compliance, the Landlady has interfered with his quiet occupation of the premises, forcefully entered, harassed his employees and customers, and deprived him of access to utilities, and has threatened to unlawfully terminate the tenancy and evict him.

D. Landlady’s Defence 11. The Landlady, in her Replying affidavit dated 1st July 2023, avers that the Tenant took up the business premises on 16th December 2022, and opened a wines and spirits business.

12. The Landlady further avers that since 15th May 2023, the Tenant has been running an indecent business, allowing customers to freely sit and drink inside the suit premises.

13. She further claims that this has led to the misuse of toilet facilities, increased water consumption due to a large number of visitors, and an increased risk of a lot of human traffic in and out of the stall during irregular timings.

14. She states that she has cautioned the Tenant against such conduct and has received numerous complaints from other tenants.

15. The Landlady also avers that the Tenant has no permit or authority to run a bar business, as the tenancy agreement is specifically for a wines and spirits business, making the Tenant in breach of the agreement.

16. She avers that she has served the Tenant with a termination notice dated 22nd June 2023.

17. The Landlady further states that there are no rent arrears due.

E. Issues for Determination 18. Having carefully perused all the pleadings and evidence presented before this Honorable Tribunal by the parties, it is therefore my respectful finding that the sole issue for determination is:a.Whether the Notice issued by the Landlady dated 22nd June 2023 is valid?

F. Analysis and Findings a. Whether the Notice issued by the Landlady dated 22nd June 2023 is valid? 19. The tenancy herein falls within the ambit of a controlled tenancy and therefore it is trite that the same must be terminated as per the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 Laws of Kenya (“the Act”) which provides for the form and procedure of termination of a controlled tenancy.

20. Section 4(2) of the Act mandates a Landlord to issue a notice using the prescribed form (Form A) to the Tenant if he intends to terminate a controlled tenancy or make any changes that would be detrimental to the tenant's rights, conditions, or services under the tenancy.

21. Furthermore, Section 4(4) of the Act states that a tenancy notice will only take effect on a date which must be at least two months after the receiving party receives the notice.

22. Additionally, Section 4(5) of the Act establishes that a tenancy notice must specify the grounds for the termination, alteration, or reassessment. The notice must also require the receiving party to respond in writing within one month of receiving the notice, indicating whether or not they agree to comply with its terms.

23. The Tribunal notes that the Landlady issued a written termination notice to the Tenant dated 22nd June 2023. However, upon careful examination of the aforementioned termination notice, it is apparent that it fails to meet the prescribed requirements as set out in the Act.

24. Firstly, the notice is not in the prescribed form, Form A. Secondly, it provides for a notice of less than two months. Thirdly, the contents of the notice do not meet the requirements outlined in Section 4(5).

25. As stated above, a tenancy termination notice must clearly state the reasons for the termination. Section 7 of the Act provides for the grounds in which a Landlord may terminate a Tenancy. Specifically, Section 7(c) states that a landlord may terminate a tenancy if the tenant has committed significant breaches of their obligations under the tenancy or for any other reason related to the tenant's use or management of the premises included in the tenancy.

26. In the termination notice dated 22nd June 2023, the Landlady's primary ground for termination is that the Tenant has breached the Tenancy Agreement dated 16th December 2022.

27. However, upon closely examining the presented tenancy agreement, this Honorable Tribunal has found that the Tenancy Agreement does not specifically mention the intended use of the premises.

28. Despite the existence of the intention of the Tenant to utilize the premises as a shop for takeaway wines and spirits rather than a bar (as per the Landlady’s replying affidavit dated 1st July 2023), and the presence of the Tenant's single business permit from the Nairobi County permitting the use of the premises as a shop, the Landlady has failed to provide this Tribunal with conclusive evidence regarding the actual use of the premises and any breaches related to its usage.

29. Due to this lack of evidence regarding the use of the premises, the termination notice issued by the Landlady also fails to meet the requirements in terms of the stated grounds for termination.

30. In light of the foregoing, this Honorable Tribunal finds that the notice is invalid. As this is a controlled tenancy, the Landlord is obligated to comply with the requirements of terminating a controlled tenancy as outlined in Section 4 of the Act.

G. Orders 31. In the upshot, the Tenant’s Reference and Application dated 24th May 2023 is hereby allowed in the following terms:a.The Notice of termination by the Landlady dated 22nd June 2023 is invalid and the same is of no legal effect.b.The Landlady is hereby restrained from interfering with the Tenant’s quiet enjoyment of the Tenancy or suit premises in any way whatsoever.c.The Landlady is restrained from issuing a fresh notice until the expiration of twelve months of this Rulings as per Section 9(3)(b) of the Act.d.Each party shall bear its own costs.

HON A. MUMA - AG CHAIR/MEMBERHON. JACKSON ROP - MEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, DELIVERED AND SIGNED AT NAIROBI ON THIS 11TH DAY OF MARCH 2024 IN THE ABSENCE OF THE TENANT/APPLICANT AND IN THE PRESENCE OF NKANGI FOR THE RESPONDENT/LANDLORD.HON A. MUMA - AG CHAIR/MEMBERHON. JACKSON ROP - MEMBERBUSINESS PREMISES RENT TRIBUNAL