[2022] KEBPRT 245 (KLR)
The court found that the tenancy notice issued by the landlord was fatally defective and incompetent because it failed to clearly specify whether it was for termination of tenancy or increment of rent, as required by section 4(5) of Cap. 301. The ambiguity rendered the notice ineffective for the purposes of the Act....
Source-derived case information.
- Citation
- [2022] KEBPRT 245 (KLR)
- Parties
- Applicant: Angela Gakenia; Respondent: Charles Munga Kimita t/a Mwalimu Agencies Co. Ltd; Respondent: Florence Njeri Mukura
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E007 of 2022
- Procedural Posture
- Tribunal Application / Ruling on Application for Leave to Levy Distress and Eviction Orders
- Outcome
- Application dismissed; costs awarded to tenant.
- Judges
- Gakuhi Chege
- Legal Topics
- Business Premises Tenancy, Tenancy Notices, Rent Arrears, Eviction Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Angela Gakenia
Applicant
Charles Munga Kimita t/a Mwalimu Agencies Co. Ltd
Respondent
Florence Njeri Mukura
Respondent
Procedural Posture
Tribunal Application / Ruling on Application for Leave to Levy Distress and Eviction Orders
Legal Issues
- 1 Whether the tenancy notice issued by the landlord is valid and effective under Cap. 301, Laws of Kenya.
- 2 Whether the landlord is entitled to orders for distress for rent and eviction based on the impugned notice.
- 3 Who should bear the costs of the application.
Ratio Decidendi
The court found that the tenancy notice issued by the landlord was fatally defective and incompetent because it failed to clearly specify whether it was for termination of tenancy or increment of rent, as required by section 4(5) of Cap. 301. The ambiguity rendered the notice ineffective for the purposes of the Act. Consequently, the landlord’s application for leave to levy distress and for eviction orders could not be granted, as there was no valid foundation for such reliefs. The tenant was justified in not filing a reference in response to the defective notice. Costs were awarded to the tenant, to be set off against the rent account if not paid within thirty days.
Court Disposition
Application dismissed; costs awarded to tenant.
Orders
- The tenancy notice dated July 21, 2021 is declared defective, incompetent, and ineffective for purposes of Cap. 301, Laws of Kenya.
- The tenant is awarded Kshs. 10,000 as costs, to be set off against the rent account if not paid within thirty days by the landlord.
Full Case Text
Judgment text and source record
30 paragraphs
Gakenia v Kimita t/a Mwalimu Agencies Co. Ltd & another (Tribunal Case E007 of 2022) [2022] KEBPRT 245 (KLR) (Civ) (14 July 2022) (Ruling)
Neutral citation: [2022] KEBPRT 245 (KLR)
Republic of Kenya
In the Business Premises Rent Tribunal
Civil
Tribunal Case E007 of 2022
Gakuhi Chege, Vice Chair
July 14, 2022
Between
Angela Gakenia
Applicant
and
Charles Munga Kimita t/a Mwalimu Agencies Co. Ltd
1st Respondent
Florence Njeri Mukura
2nd Respondent
Ruling
1. The instant proceedings are based on a notice dated July 21, 2021. The said notice was issued by the Landlord to the tenant in respect of commercial premises situate on plot no. 667/24, Peni Tatu Hotel and was expressed to take effect on October 1, 2021.
2. In one breath, the notice appears to be one for increment of rent from Kshs.14,900/- to Kshs.16,313/- per month on account of current rate of valuation.
3. Under clause 3 of the notice, the notice sets out grounds of termination as failure to pay rent and being in monthly rent arrears of Kshs.4900/- per month for Eight (8) months totaling to Kshs.44,100/-.
4. The notice of motion dated January 19, 2021 filed by the landlord is seeking for leave to levy distress on the tenant’s goods to recover rent arears. The landlord further seeks for orders of eviction against the tenant for failure to file a reference upon service of the “notice to terminate the tenancy”.
5. The application is supported by the affidavit of the Landlord sworn on December 17, 2021 which is a date Eleven (11) months after the date of the application. This is a fatal defect considering that the application was filed on January 20, 2021 based on the court fees receipt on record.
6. The application is opposed through the replying affidavit of the tenant sworn on February 25, 2022 wherein the tenant ought to increase rent and at the same time intends to terminate tenancy.
7. I am required to decide whether the tenancy notice is valid or not. I am also required to determine whether to grant the reliefs sought by the landlord in the application dated January 19, 2022. Finally, I will decide on the issue of costs.
8. Under section 4 (5) of Cap. 301, Laws of Kenya, a tenancy notice shall not be effective for any of the purposes of the 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.
9. I have examined the tenancy notice issued by the landlord herein and one cannot tell whether it is for termination of tenancy or increment of rent as it covers both areas. It is in my view defective and incompetent. The tenant was perfectly in order not to file any reference and wait to see what action the landlord would take and defend at that point.
10. The notice being defective and incompetent cannot be a basis for granting the reliefs sought by the landlord vide the application dated January 19, 2022. There is no foundation upon which the reliefs can be granted.
11. On the issue of costs, they always follow the event and are in the court’s discretion. I have no reasons to deny the tenant costs of the reference.
12. I therefore make the following orders:-i.The tenancy notice dated July 21, 2021 is defective, incompetent and as such ineffective, for purposes of Cap. 301, Laws of Kenya.ii.The Tenant is entitled to Kshs.10,000/- as costs to be defrayed against the rent account, if not paid within Thirty (30) days by the landlord.iii.The landlord is at liberty to serve a proper notice under section 9(3) of the Act.It is so ordered.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14TH DAY OF JULY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling read in absence of parties.