[2022] KEBPRT 841 (KLR)

Generations Electronics & Allied Limited v Mwanzia (Tribunal Case E583 of 2022) [2022] KEBPRT 841 (KLR) (Civ) (14 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 841 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E583 of 2022

Gakuhi Chege, Vice Chair

November 14, 2022

(a) The landlord’s notice dated March 31, 2022 is hereby declared defective and is consequently invalid under cap 301, laws of Kenya. (b) the landlord restrained from evicting the tenant from the suit premises or in any other way interfering with its tenancy in plot No 77, Kitui Township in Kitui County without adhering to the provisions of cap. 301, Laws of Kenya. (c) the landlord’s reference and application in Nairobi BPRT No E616 of 2022 dismissed. (d) the tenant awarded costs of Kshs 25,000/- in the consolidated cases which shall be defrayed against the rent account unless paid within the next thirty (30) days hereof. (v) the landlord shall be at liberty to issue a proper notice under cap 301, laws of Kenya if he so wishes.

Between

Generations Electronics & Allied Limited

Applicant

and

Musumbi Mwanzia

Respondent

Ruling

1. The tenant moved this tribunal vide a reference dated July 5, 2022 under section 12(4) of cap 301, laws of Kenya complaining that the landlord issued it with an illegal statutory notice contrary to provisions of the Act.

2. The tenant simultaneously filed a motion of even date seeking restraining orders against the landlord from evicting it from plotNo 77, Kitui Township, Kitui County pending hearing of the reference. Interim orders were on July 6, 2022 given in favour of the tenant pending hearing inter-partes of the application on August 4, 2022.

3. The tenant operates an electronics shop in the landlord’s premises aforesaid and has done so for the last 20 years currently paying monthly rent of Kshs 45,000/-.

4. On March 31, 2022, the landlord issued a notice to terminate the said tenancy on grounds that he wants to carry out renovations which cannot be done when the tenant is in possession. The notice marked “DM-1” and was expressed to take effect on July 1, 2022. The tenant objected to the said notice through its advocates’ letter of 1June 4, 2022. The letter is marked as annexure ‘DM-2’.

5. The landlord did not however issue a valid notice despite objection by the tenant but instead threatened to evict the tenant through his advocates’ letters of June 24, 2022 and July 1, 2022 marked ‘DM-3’.

6. It is against the foregoing background that the tenant moved to this tribunal fearing possible eviction which would result in substantial loss. The tenant contends that it is in the interest of justice that the orders sought in the application be allowed as no party shall suffer prejudice if granted.

7. Being opposed to the application, the landlord filed a replying affidavit sworn on August 17, 2022 wherein it is deposed that the termination notice was precipitated by another notice received by the landlord from Kitui County Government marked ‘MM-1’ stating that the state of the building was not conducive for human use and ought to be renovated.

8. Upon surveying the building, the landlord confirmed that it was not in a good state as the floors are chipped, the roof iron sheets are rotten and some sections were leaking, the woods supporting the roofing are old and brittle and the walls are cracked with no painting as it is chipped.

9. As a result, the landlord issued the impugned notice upon the tenant giving three months for it to look for another place to store its goods during the renovation period to avoid incurring losses that may be occasioned by the renovations.

10. According to the landlord, the said renovations are focused on ensuring that the building is safe and that he did not end up losing his only source of income in the event of demolition by the County Government.

11. It is the landlord’s contention that the building is currently not conducive for occupation. He denies serving the tenant with a termination of tenancy but admits issuing a notice for renovations.

12. According to the landlord, the notice issued to the tenant followed the legal statutory requirements as it gives 3 months as opposed to 2 months stipulated by law. Any deviation in form was justifiable under section 72 of the Interpretation and General Provisions Act cap 2 Laws of Kenya as it complied with section 7(1) (f) cap 301, laws of Kenya.

13. The landlord deposes that he was willing to give the applicant priority to lease the premises again and the intended renovation will be beneficial to the tenant as it focuses on its safety.

14. It is the landlord’s case that this case is a delaying tactic by the tenant which had three months but only moved in the last month. The landlord had already committed workmen ready to start working on the premises from July 1, 2022 and relevant payments had been made.

15. The landlord filed another case No E616 of 2022 (Nairobi) on July 8, 2022 against the tenant together with a reference under section 12(4) of cap 301, seeking that the tenant be ordered to immediately move its items from the premises to enable renovations to take place subject to adherence to new terms and conditions of tenancy for the premises after completion of renovations.

16. The said reference and application is based on the same facts discussed and pleaded in the instant case. I do not therefore propose to repeat the same.

17. On August 16, 2022, the two cases were directed to be consolidated for hearing and determination with this case being the lead file.

18. On August 30, 2022, the parties were directed to file written submissions but only the landlord’s counsel complied. I shall refer to the submissions together with the issues for determination.

19. Based on the foregoing pleadings, the following issues arise for determination:-a.Whether the landlord’s notice of renovation dated March 30, 2022 is valid.b.Whether the landlord is entitled to the reliefs sought in Nairobi BPRT No E616 of 2022. c.Whether the tenant is entitled to the reliefs sought in Nairobi BPRT No E583/2022. d.Who is liable to pay costs?

20. Sections 4(1) and 2 of cap 301, laws of Kenya provide as follows:-“(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”.(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”.

21. Regulation 4(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Tribunal) (Forms and Procedure) Regulations, 1966 provides as follows:-“(1)A notice under section 4(2) of the Act by a landlord shall be in Form A in the schedule to these Regulations”.

22. The landlord herein served a notice dated March 31, 2022 giving the tenant three (3) months to vacate from the suit premises to enable him to carry out renovations. The said notice is admittedly not in the prescribed form but the landlord cites section 72 of the Interpretation and General provisions Act cap 2, laws of Kenya to argue that such deviation does not affect the substance of the instrument.

23. The said provision stipulates as follows:-“Save as is otherwise expressly provided, whenever a form is prescribed by a written law, an instrument or document which purports to be in that form shall not be void by reason of a deviation therefrom which does not affect the substance of the instrument or document or which is not calculated to mislead”.

24. It is submitted on behalf of the landlord that the impugned notice specifies the premises, the duration of the notice, date when the notice is to take effect and grounds of termination.

25. As such, the notice ought to e considered fit and qualify for a renovation notice in substance. The landlord cites the case of Oscar Lavasha (Explore Auto Valuers and Accessories Limited) v Babi Investments & another[2021] eKLR which cited section 72 of cap 2 in upholding a notice which did not comply with section 4 of cap 301, Laws of Kenya. I have tried to search for the case online but could not get it neither is it annexed to the submissions.

26. In the case of Fredrick Mutua Mulinge t/a Kitui Uniform v Kitui Teachers Housing Co-operative Society Limited [2017] eKLR, the superior court cited several decisions to show that non-compliance with section 4 of cap 301, laws of Kenya in both substance and form is fatal and cannot be wished away. Among the cases cited is the time honoured decision in Lall v Jeypee Investments Limited [1972] EA 512 where it was held as follows:-“The Landlord and Tenant(Shops, Hotels and Catering Establishments) Act is an especially enacted piece of legislation which creates a privileged class of tenants for the purpose of affording them the protection specified by its provisions against ravages of predatory landlord. Such protection can only be fully enjoyed if the provisions of the Act are observed to the letter otherwise, the clearly indicated intention of the legislature would be defeated. In order to be effective in this fashion, the Act must be construed strictly no matter how harsh the result….. TheLandlordand Tenant Act laid down a code which parliament intended to be followed and if a landlord does not give notice of termination as prescribed, the notice will be ineffectual. This may seem a technical and unmeritorious defence, but there is no doubt that the court has no power to dispense with these time limits if the defendant chooses to object at the proper time. This is an Act which requires in so far as the giving of the notice is concerned, absolute and complete not merely substantive compliance with its peremptory provisions” (Emphasis mine)

27. Given the wording of section 4(1) of cap 301, laws of Kenya and section 72 of cap2, laws of Kenya, I am not persuaded that failure to issue notice in the prescribed form would be cured by the latter and I choose to follow the previous decisions cited in the case of Fredrick Mutua Mulinge v Kitui Teachers Housing Co-operative Society Limited (supra). I therefore find and hold that the notice issued by the landlord herein is defective and of no effect.

28. Consequently, the landlord is not entitled to the reliefs sought in Nairobi BPRT No E616 of 2022 and the same is a candidate for dismissal.

29. On the other hand, the tenant has demonstrated that it was served with a defective notice and despite objecting to the implementation thereof, the landlord was hellbent to evict it as demonstrated by annexure “DM-3” dated June 24, 2022 and July 1, 2022. It had no option but to come to this tribunal to seek protection.

30. I therefore find that the tenant is entitled to the reliefs sought in line with the decision of the Court of Appeal in the case of Aikman & others v Muchoki & others [1982] eKLR where it was held at page 4 as follows:-“………..The court ought never to condone and allow to continue a flouting of the law. Those who flout the law by infringing the rightful title of others and brazenly admit it, ought to be restrained by injunction. If I am adding a new dimension for the grant of an interlocutory injunction, be it so. Equity will not assist law- breakers”.

31. I am therefore ready to hold that the tenant has demonstrated that it is entitled to the reliefs sought in Nairobi BPRT No E583 of 2022. I shall therefore allow the reference and application therein.

32. As regards costs, the same are in the discretion of the tribunal under section 12(1) (k) of cap 301, laws of Kenya but always follow the event unless for good reasons otherwise ordered. I have no reason to deny the tenant costs of the consolidated suit.

33. In conclusion therefore, the following final orders commend to me under section 12(4) of cap 301, Laws of Kenya:-a.The landlord’s notice dated March 31, 2022 is hereby declared defective and is consequently invalid under cap 301, laws of Kenya.b.The landlord is restrained from evicting the tenant from the suit premises or in any other way interfering with its tenancy in plot No 77, Kitui Township in Kitui County without adhering to the provisions of cap. 301, Laws of Kenya.c.The landlord’s reference and application in Nairobi BPRT No E616 of 2022 is hereby dismissed.d.The tenant is awarded costs of Kshs 25,000/- in the consolidated cases which shall be defrayed against the rent account unless paid within the next Thirty (30) days hereof.e.The landlord shall be at liberty to issue a proper notice under cap 301, laws of Kenya if he so wishes.It is so ordered.

RULING DATED, SGINED & VIRTUALLY DELIVERED THIS 14TH DAY OF NOVEMBER 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of:Shisanya for the tenant.No appearance for the landlord.