[2021] KEBPRT 145 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 80 OF 2021 (NAKURU)

GEORGE MWANGI...........................................................................APPLICANT/TENANT

VERSUS

DUNCAN N. NJAU...........................................................LANDLORD/ 1ST RESPONDENT

SIMON GICHERU T/A

PATAN COMMERCIAL AGENCIES.......................................AGENT/2ND RESPONDENT

RULING

Parties and their Representative

1. The Tenant/ Applicant, George Mwangi (herein after referred to as the ‘Tenant’), rented a commercial premises situated on Parcel Title No. Subukia/Subukia Block 13/404 adjacent to Nakuru-Nyahururu Road.

2. Learned Counsel Ochieng Naibei Advocates represents the Tenant.

3. The 1st Respondent Duncan N. Njau is sued as the Landlord of the Commercial Premises situated on Parcel Title No. Subukia/Subukia Block 13/404 adjacent to Nakuru-Nyahururu Road (herein after referred to as the ‘Landlord’).

4. The 2nd Respondent is the agent of the landlord Patan Commercial Agencies tenant (herein after referred to as the ‘Agent’).

5. Learned Counsel Njeri Njagua & Co. Advocates represents the 1st and 2nd Respondents

The Dispute Background

6. On 4th June, 2021the Landlord, Dancan N. Njau, through the Agent, Patan Commercial Agencies, served upon the Tenant a Notice to Vacate the Premises dated 4th June 2021. The Notice to Vacate stated that the Landlord intended to demolish the building early July 2021 in accordance with a notice issued by Kenya National Highways Authority (KENHA) instructing that the building, consisting of the disputed premises and other commercial units, be demolished as it had been constructed on a road reserve area along the Nakuru-Nyahururu Road.

7. The Tenant vide notice of motion dated 30th June 2021 accompanied by a certificate of urgency and supporting affidavit both dated 30th June 2021sought orders that:

i.the Landlord and his agents be restrained from issuing an illegal and defective notice contrary of the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 Laws of Kenya.

ii. the Landlord and his agents be restrained from issuing a defective notice to vacate the disputed premises and from increasing the rent.

iii. the Tenant had incurred Kshs. 10,380. 00 on repair and renovation of the disputed premises and that the same be deducted from the rent.

8. This Tribunal issued a temporary injunction order dated 9th July 2021, prohibiting the Landlord and his Agents from evicting, harassing, intimidating, increasing the rent or interfering with the Tenant’s peaceful occupation of the premises pending hearing and determination of the application dated 30th June, 2021.

Jurisdiction

9. The Jurisdiction of this Tribunal is not in dispute.

The Tenants Claim

10. The Tenant vide notice of motion dated 30th June 2021accompanied by a certificate of urgency and supporting affidavit both dated 30th June 2021 sought orders that:

i. The Landlord and his agents be restrained from issuing an illegal and defective notice contrary of the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 Laws of Kenya.

ii. The Landlord and his agents be restrained from issuing a defective notice to vacate the disputed premises and from increasing the rent.

iii. The Tenant had incurred Kshs. 10,380. 00 on repair and renovation of the disputed premises and that the same be deducted from the rent.

11. Tenant filed a further supporting affidavit dated 3rd August 2021 and written submission dated 17th September 2021.

The Landlord’s Claim

12. The Landlord has filed a replying affidavit dated 27th July 2021 in reply to the Tenant’s application dated 30th June, 2021 raising the following issues:

a. That KENHA had issued a demolition notice sometime in 2016citing that the disputed premises had encroached on the Nakuru-Nyahururu Road Reserve.

b. Sometime in May 2021 KENHA officials visited the premises and threatened to demolish the premises.

c. The Landlord issued a notice to the Tenant to vacate the premises so that he could demolish the same.

d. The Landlord did not authorize the Tenant to repair or renovate the disputed premises

e. The Tenant owes rent arrears amounting to Kshs 21,000. 00 for the months of May June and July.

13. Further the Landlord filed a further affidavit dated 7th September, 2021, raising several issues including; details that KENHA had confirmed vide a Notice dated 16th August 2021 that the building wherein the disputed premises is located has encroached the Nakuru-Nyahururu road by approximately 4 meters hence due for demolition.

14. The matter was fixed for ruling on 5th November 2021.

15. I have had occasion to peruse the pleadings above-mentioned of both the Landlord/1st Respondent and Tenant/Applicant and also the written submissions and I will not rehearse the same again as they are brief and to the point.

16. I will refer to them in my analysis below where relevant and I thank parties for the same.

Matters Not in Dispute

17. There is no dispute over the jurisdiction of this Tribunal.

List of Issue for Determination

18. The Tenant/Applicant raised certain issues for determination in the Application and submissions and the Landlord/Respondent in the Replying Affidavit and Further Affidavit, therefore, the tribunal shall proceed to distill the issues discussed by parties and their counsels who submitted in writing as below:

a) Whether the Notice to Vacate the Premises is valid?

b) Whether the Landlord is liable for compensation of costs incurred by the Tenant on repair and renovation of the premises?

Analysis and Findings

a) Whether the Notice to Vacate the Premises is valid?

19. I note that the Landlord had issued a Notice to Vacate the premises dated 4th June, 2021 which notice was served upon the Tenant. The notice to vacate notified the tenant of the Landlord’s decision to terminate the tenancy relationship and demolish the premise in accordance with a notice issued by KENHA instructing the Landlord to demolish the building as it encroaches on the Nakuru-Nyahururu Road Reserve.

20. The notice to vacate stated that the Landlord intended to demolish the premises in early July 2021 thereby according the Tenant a one-month notice to comply with the notice and vacate the premises.

21. Validity of a notice to terminate tenancy is determined by section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 Laws of Kenyaas follows:

4. Termination of, and alteration of terms and conditions in, controlled tenancy

(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.

…

(4) No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party…

(5)A tenancy notice shall not be effective for any of the purposes of this 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.

(6) A tenancy notice may be given to the receiving party by delivering it to him personally, or to an adult member of his family, or to any other servant residing within or employed in the premises concerned, or to his employer, or by sending it by prepaid registered post to his last known address, and any such notice shall be deemed to have been given on the date on which it was so delivered, or on the date of the postal receipt given by a person receiving the letter from the postal authorities, as the case may be.

22. I have examined a copy of the notice to vacate dated 4th June, 2021 and I note that the notice is not in the prescribed form therefore it fails to comply with section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 Laws of Kenya.

23. This Tribunal is persuaded by the reasoning applied in the case Oscar Luvaha (Explore Auto Valuers and Assessories Limited) v Babi Investments & another [2021] eKLR wherein this Tribunal stated that:

“I am guided by Section 72of the Interpretation and General Provisions Act Cap 2 Laws of Kenya,which permits deviation from the prescribed form where such deviation does not affect the substance of the instrument. The provision specifically states 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.”

According to Form A as provided in the Regulations above mentioned, the Landlord’s notice to terminate the terms of the Tenancy herein should have specified;

a. The Landlord’s premises occupied by the Tenant;

b. The duration of the notice of terminating the tenancy and the date when the notice is to take effect;

c. The grounds for termination of the tenancy;

d. The requirement that the Tenant should within one month notify the Landlord in writing whether or not the Tenant agrees to comply with the notice as from the date of receipt of the notice.

24. Bearing in mind that the notice to vacate dated 4th June 2021 was not in the prescribed form I shall consider the substance of the notice in the interest of justice.

25. The notice to vacate indicated that the ground for termination of tenancy is that KENHA has issued a notice of demolition of the premises as it has encroached on the Nakuru-Nyahururu Road Reserve. Further, the Notice to vacate was addressed to the Tenant and other tenants in the premises and issued a one-month notice to vacate.

26. The Landlord has expressed that there exist strenuous circumstances that necessitated issuance of the notice to vacate. I will now delve into an analysis of the circumstances as pleaded by the Landlord.

27. The Landlord in his replying affidavit dated 27th July 2021 and Further Affidavit dated 7th September, 2021 has tendered evidence in this Tribunal to prove his averments that KENHA had issued a Notice to demolish the Suit premises as it has encroached on the Nakuru-Nyahururu Road Reserve by 4 meters. This is supported by a Demolition Noticed dated 16th August, 2021 and the Letter dated 16th August, 2021 from KENHA addressed to the Landlord’s Advocate.

28. I have examined the Demolition Noticed dated 16th August 2021 and note that in summary it states as follows:

a. Subukia/Subukia Block 13/404 has encroached on the Nakuru-Nyahururu Road Reserve;

b. The Owner of the building should demolish the same and make good the encroachment within thirty days; and

c. Failure to comply with the notice shall result in KENHA removing the encroachment pursuant to section 49 (5) of the Roads Act 2007 and 91(2) of the Traffic Act cap 403 with risk as to costs of the owner/landlord.

29. Additionally, a copy of the Demolition Notice was issued to the Deputy County Commissioner Subukia Sub County.

30. I have examined the Letter dated 16th August, 2021 from KENHA addressed to the Landlord’s Advocate and note that letter states that the property on Parcel No. Subukia/Subukia Block 13/404 has encroached on the Nakuru-Nyahururu Road Reserve by 4 meters. Moreover, the attached drawing indicating the encroached section of the building have been presented before this Tribunal.

31. The Landlord has asserted that the disputed premises is located on the part of the building that has encroached on the road reserve. Further, he intends to partially demolish the building and in effect only demolish the encroaching portion of the building and minimize damage to the rest of the building.

32. Neither the Tenant nor the Landlord have taken any action to quash the Demolition Notice or have the same set aside therefore the Demolition Notice though issued after the Tenant had approached this Tribunal for reliefs against the actions of the Landlord is valid.

33. For the reasons stated above, an order by this Tribunal setting aside the Notice to Vacate because it is not in the prescribe form will only serve to occasion unnecessary strain on the Landlord as the premises will be demolished by KENHA. Additionally, upon demolition by KENHA the Landlord risks damage to the part of the building that has not encroached on the road Reserve.

34. I am guided by the case of Oscar Luvaha (Explore Auto Valuers and Accessories Limited) v Babi Investments & another [supra]and Section 72of the Interpretation and General Provisions Act Cap 2 Laws of Kenya which permits deviation from the prescribed form where such deviation does not affect the substance of the instrument and therefore hold that the notice to terminated dated 4th June, 2021 is valid.

35. Further, Equity like nature will do nothing in vain". On the basis of this maxim, courts have held again and again that it cannot stultify itself by making orders which cannot be enforced or grant an injunction which will be ineffective for practical purposes. Since the suit premises is set to be demolished in accordance with the directions of KENHA any order restraining the Landlord from enforcing the Notice to Vacate will be impossible to comply with.

36. In light of the above, the notice to vacate dated 4th June, 2021 is valid

b) Whether the Landlord is liable for compensation of costs incurred by the Tenant on repair and renovation of the premises?

37. I note that neither the Landlord nor Tenant have furnished this Tribunal with the Tenancy agreement or documentation on the tenancy relationship that details the rights and responsibilities of both the Landlord and Tenant.

38. Matters on renovation of business premises and refund of renovation costs as between the Landlord and Tenant are customarily expressly spelt out in the tenancy agreement. In the absence of the tenancy agreement, this Tribunal will proceed to interrogate the issue of damages based on the facts before it.

39. The Tenant contends that he obtained authorization of the Landlord before undertaking any repair and renovations to the premises and therefore seeks that this tribunal issue an order that the total expenses incurred of Kshs 10,380. 00 be deduced from the rent arrears owed to the Landlord.

40. The Tenant has not furnished this Tribunal with a written agreement between him and the Landlord on how the repairs and renovations were to be conducted and whether the Landlord was to refund the costs if any incurred by the Tenant.

41. In the absence of any written agreement by the parties, the Tenants claim for Kshs. 10,380. 00 fails.

ORDERS

For the reasons given above I order as follows that:

a) The notice to vacate dated 4th June 2021 read together with KENHA notice are declared valid.

b) The Tenant to vacate the commercial premises situated on the building erected on Parcel Title No. Subukia/Subukia Block 13/404 adjacent to Nakuru-Nyahururu Road with immediate effect.

c) The Tenant’s claim for Kshs. 10,380. 00 fails.

d) Tenant to pay arrears pleaded by landlord of 21,000/-

e) The OCS Subukia Police Station to aid the Landlord in execution of the Orders.

f) Each party to bear their own costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 12TH DAY OF NOVEMBER, 2021 in the presence of Mwaniki Ms holdingbrief forNjerifor theLandlord/Agentand in the absence of theTenant.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL