[2024] KEBPRT 286 (KLR)

Gathoni v Warsame Energy Limited (Tribunal Case E943 of 2023) [2024] KEBPRT 286 (KLR) (1 March 2024) (Ruling)

Neutral citation: [2024] KEBPRT 286 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E943 of 2023

M Makori, Member

March 1, 2024

Between

Martin Mwai Gathoni

Applicant

and

Warsame Energy Limited

Respondent

Ruling

1. The present claim was filed vide a reference dated 22nd September 2023 under section 12 (4) for illegal notice, locking of premises, switching off of electricity and quiet possession and an application of even date supported by the supporting affidavit of Martin Mwai Gathoni was filed.

2. In the interim the tribunal issued orders for reopening, matter came up for hearing on 19th October 2023, counsel for the parties by consent, agreed to have the application dated 22nd September, 2023 and the reference herein disposed of by way of written submissions. At the time of writing this ruling, both counsel have filed their respective submissions.

3. From the totality of the pleadings filed by parties and submissions several issues arise for determination.

4. The Tenant notice of motion dated 22nd September, 2023 and filed together with his above reference sought the following orders;1. Spent.2. That the tribunal declares tenancy as controlled.3. That the Landlord/Respondent be temporarily be prohibited and retrained from unlawfully evicting and/or levying distress upon the tenant pending the hearing and determination of the application.4. That the landlord/Respondent be ordered to pay damages for unlawfully locking up the premises hence interfering with the tenants business.5. Spent.6. Costs of this application be provided for.

5. The application is based on the grounds;1. That the landlord has issued an illegal eviction notice upon the tenant interfering with the tenant business.2. The landlord has locked up the premises3. That the Landlord has interfered with the Tenants peaceful occupation and enjoyment of the premises by locking up the premises as means of harassing and coercing the tenant to give in to his unlawful machination to interfere with and alter the terms of the tenancy.4. That the tenant stands to suffer irreparable damage if the landlord is allowed to continue with his campaign of harassment.5. That the landlord will suffer irreparable loss if the Tribunal does not intervene.

6. The Tenant submissions may be summarized as follows;1. That the tenancy is a controlled tenancy.2. That the Landlord did not adhere to section 4(2) and (5) of the Landlord and Tenant (Shops, Hotels, and catering Establishment) Act, cap 301 by failing to provide notices as regulated by the act and in conformity with the act.

7. The landlord submissions on the application under consideration may be summarized as follows;1. There being no written lease between the Tenant and the Landlord, the Tenant herein is a controlled Tenant under Cap 301of the Laws of Kenya.2. That the Landlord served the tenancy notice in the prescribed form as mandated under cap301. That the Tenant was issued with a notice for Rent increment as produced as exhibit AM4 dated 21st August 2023. 3.That the Tenant has become a nuisance and proceeded to sublet in another new tenant.

8. The above being the summary of the parties’ cases, the following issues in my humble view arise for determination;a.Whether the tenancy is a controlled tenancy..b.Whether the notices issued were in conformity with law.c.The issue on increment of rent

Whether the tenancy is a controlled tenancy. 9. Section 2 (1) of the Act“controlled tenancy” means a tenancy of a shop, hotel or catering establishment—(a)which has not been reduced into 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:

10. For our purposes, the relevant part of that provision is Section 2 (1)(b) for the tenancy to be a controlled one, the break clause can as well be where there is no written agreement., and hence this take purview of a controlled tenancy.

11. Parties herein through their pleadings confirm that there is indeed a Landlord-Tenant Relationship where the Tenant has been staying on the suit property subject to the payment of rent and has been conducting his businesses in the Landlords premises.

12. The tenant cites the Section 4 (1) of the Act that provides that ;“A landlord who wishes to terminate a controlled tenancy or to alter to the detriment of the tenant any term or condition in or service enjoyed by the tenant under such a tenancy shall give notice in that behalf to the tenant in the prescribed form”

13. However, I note that in the instant case the Landlord raises questions on the new sublease and not the former one, and determination of whether there is an agreement of lease between the Landlord and the new tenant who was let by the former tenant, the Applicant herein, hence the Landlord is at liberty to lodge a matter against the new sublet and the same cannot be determined in this matter.

Whether the notices issued were in conformity with law. 14. Section 4(2) of the said Act provides that a Landlord who wishes to terminate or alter controlled tenancy to the detriment of the tenant any term and condition shall be stated.

15. The Landlord submits that he issued a notice to the Tenant to vacate dated 21st August 2023 marked as annexture AM4 a month after sublet occupied the premises the notice according to her was effective since the sublet was a stranger to him. That notice though referred to and purported to be annexed by the respondent was not filed in court.

16. On his part, the Tenant contends in his supporting affidavit that the Landlord has issued an illegal notice. He also did not annex the illegal notice to his said affidavit. In his submissions before me, he stated that the Landlord gave him a one-month notice to vacate from the suit premises. He further stated that he ought to have depleted his deposit money before moving out.

17. The notice to terminate or alter the terms and conditions in a controlled tenancy is to be found under section 4(2) and section 4(4) of Cap 301. Relevant to the dispute herein is section 4(2) which is in the following terms;“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.Under section 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 specified therein.”

18. It’s noteworthy that the tenancy is a controlled tenancy by failure to have a written lease agreement that exceeds five (5) years one (1) month.

19. Having established that the notice issued by the Landlord to the Tenant was not valid, the main question for determination before this Tribunal is with regards to the timeline of the notice and also the new sublet who is not known to the Landlord.

20. In my findings the notice to terminate the tenancy herein does not or is not issued in conformity to section 4(2) of Cap 301. It is illegal and invalid. I have further found that the reasons put forth for the termination are not proved by the affidavits satisfactorily.

21. On the issue of the new occupant who is the new sublet not known to the Landlord cannot be dealt with in this matter, however the Landlord is it at liberty to institute another suit against the new sublet for determination.

22. I therefore find and hold that there is no material proof placed before me to demonstrate that the tenancy notice was served.

The issue on increment of rent. 23. If the Tenant knew to run to this tribunal seeking protection against eviction the tenant could also have come to question the increment given that the same is not a point of claim in the reference then the tenant’s acquiesce defeats this remedy.

24. No further affidavit was filed by the tenants to rebut issued of rent arrears. It would be provided to indicate proof of payment of rent. That much was not provided for and thus the landlord position sails.

25. The Landlord notice issued to the tenant was done vide a letter. The act requires that the same be done in the prescribed form as stated above under section 4 (2).

26. Based on the provisions of section 4(2), the landlord notice fails to meet the threshold thus must fail.

27. The tenants Application and reference partially succeeds and the tribunal consequently makes the following orders.

28. Flowing from the findings and having made the above analysis, I will make the following findings:a.The Tenancy is a controlled tenancy.b.The Notice by the Landlord is illegal as it is not in the prescribed form.c.The tenant being in arrears in 60 days failure of which the landlord is at liberty to distress for rent and take vacant possession.d.Each party shall bear their own costs

RULING DATED, SIGNED AND DELIVERED AT NAIROBI THIS 1ST DAY OF MARCH, 2024HON MIKE MAKORIMEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the absence of the parties.