[2022] KEBPRT 681 (KLR)

Gikuya v Administrators of the Estate of Erastus Njugua Kama (Deceased) & another (Tribunal Case E108 of 2022) [2022] KEBPRT 681 (KLR) (Civ) (7 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 681 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E108 of 2022

Gakuhi Chege, Vice Chair

September 7, 2022

Between

Kamau Gikuya

Applicant

and

Administrators of the Estate of Erastus Njugua Kama (Deceased)

1st Respondent

Splender Commercial Agencies

2nd Respondent

Ruling

1. The tenant’s reference dated January 31, 2022 brought under section 12(4) of Cap. 301, Laws of Kenya and the motion of even date is predicated upon a notice dated September 6, 2021 by Splendor Commercial Agencies notifying the tenant that his rent would be increased from Kshs.15,000. 00 to Kshs.50,000. 00 per month with effect from January 1, 2022 in respect of the business premises known as plot no. 209/136/98, Kirinyaga Road, Ngara.

2. The said notice is marked ‘KF-1’ and the tenant’s response marked ‘KG-2’ is dated 25th October 2022. It is the tenant’s contention that the increment was above normal and needed to be reviewed downwards.

3. It is the tenant’s complaint that the increment was arbitrary and translated into 350% over the current rent and that the Respondent had threatened to evict him if he did not pay the increased rent or his property would be distrained. He therefore came to this Tribunal to seek restraining orders against the Respondents from enforcing the said increment.

4. Interim orders were issued on 1st February 2022 and the tenant was authorized to continue paying the current rent of Kshs.15,000/- pending hearing of the application inter-partes.

5. In a replying affidavit sworn by Susan Wairimu Kamau on 2nd March 2022, she confirms that the notice of increment of rent was issued by the 2nd Respondent under instructions of the 1st Respondent and it was desired to increase rent from Kshs.15,000/- to Kshs.50,000/- with effect from 1st January 2022.

6. The matter was directed to be disposed of by way of written submissions and both parties complied. I shall consider the submissions together with the issues for determination which I proceed to frame as follows:-a.Whether the notice to increase rent complies with provisions of cap. 301, Laws of Kenya.b.Whether the tenant is entitled to the reliefs sought in the reference and application dated January 31, 2021c.who is liable to pay costs?

7. Section 4(2) of Cap. 301, Laws of Kenya, provides as follows:-“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 tenancy, shall give notice in that behalf to the tenant in the prescribed form”.

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

9. The tenant’s counsel submits that the Respondents did not serve the tenant with proper notice as prescribed by the Act. All that was served upon the tenant was a letter demanding increment which he replied to in protest. It is contended that the letter is a nullity as it does not conform with the form and requirements of the relevant Act. Section 4 (5) of Cap. 301, is cited as one of the provisions offended by the said notice.

10. In response, the landlord’s counsel submits that the notice dated September 6, 2021 notified the tenant that rent would be increased from January 1, 2022. It is submitted that the substance of the notice is clear as its effect is to alter the rent and is not misleading in any way. It therefore complied with the prescribed form under the Act and is not void by reason of deviation as alleged by the tenant/applicant and even if there was deviation, the important consideration is the substance of the notice as was held in the case of Syedna Mohamed Burhannudin Saheb – vs- Mohammedally Hassanally (1980) eKLR cited by Justice G.V. Odunga in Kirima Bus Services Ltd – vs- Joseph Kariuki Gichimu t/a Tausi Enterprises and Peacock Enterprises (2013) eKLR as follows:-“………………….Here again, the effect of the notice is in respect of termination or alteration which are subjunctive and section 10 of the Act make this clear. Section 72 of the interpretation and General Provisions Act (Cap.2) Laws of Kenya provides that save as is otherwise expressly provided whenever any form is prescribed by any written law, an instrument or document which purports to be in such form shall not be void by reason of any deviation therefrom which does not affect the substance of such instrument or document or which is not calculated to mislead”. In the instant case, there is no deviation in the form used from that which is prescribed by the Act. The substance is clear the effect of which is to terminate the tenancy or to alter the rent. And the notice is not misleading in any way. Therefore, it is held that the notice complied with the prescribed form under the Act and is not void by reason of deviation or misleading. The substance is clear and the tenants unaffected”.

11. The question of validity of notices under section 4(2) of Cap. 301, Laws of Kenya has been litigated on and decided in several cases by the superior courts and I only need to refer to the case of Fredrick Mutua Mulinge t/a Kitui Uniform – vs- Kitui Teachers Housing Cooperative Society Limited (2017) eKLR which cited several decisions on the subject including Manaver S Alibhai t/a Diani Boutique – vs- South Coast Fitness & Sports Centre Limited Civil Appeal no. 203 of 1994, Ann Mwaura & 9 Others – vs- David Wagatua Gitau & 2 Others (2010) eKLR, Narshidas & Company Limited – vs- Nyali Air Conditioning and Refrigeration Services Limited Civil Appeal no. 205 of 1995 and Lall -vs- Jeypee Investments Ltd (1972) EA 512.

12. In the last case of Lall -vs- Jeypee Investments Ltd (Supra) cited at page 5/6 of the said decision, it was held as follows:-“TheLandlord and Tenant (Shops, Hotels and Catering Establishments) Actis an especially enacted piece of legislation which creates a privileged class of tenants for the purpose against ravages of predatory landlords. 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. The landlord and 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 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 premptory provisions”. (emphasis added).

13. In view of the foregoing decisions on the question of compliance with provisions of section 4 of Cap. 301, I find that the decision cited by counsel for the landlord does not provide a proper guide to the Tribunal and I choose to follow the reasoning in the foregoing cases to find that the notice issued to the tenant herein is invalid and contrary to Section 4(2) of Cap. 301, Laws of Kenya.

14. As regards whether the tenant is entitled to the reliefs sought in this case, I find that the tenant in the face of imminent enforcement of the rent increment was entitled to seek protection of this Tribunal from eviction or distress.

15. The short tile to the landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, Laws of Kenya states as follows:-“An Act of parliament to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto”.

16. I am alive to the fact that in granting the prayers sought in the reference and application, I am required to exercise discretion based on the principles set out in the case of Giella – vs- Cassman Brown & Co. Ltd (1973) EA 358 to wit:-i.An applicant must show a prima facie case with a probability of success.ii.An injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury.iii.When the court is in doubt, it will decide the application on the balance of convenience.

17. Having already held that the notice to increase rent is invalid, it follows that the applicant has demonstrated that he has a prima facie case. The applicant was exposed to an illegality unless the increment of rent notice was set aside by this Tribunal. I have always held that where a litigant demonstrates an illegality in the impugned act, such illegality justifies intervention by a court of equity by way of issuance of injunction. I am fortified in this regard by the court of appeal decision in the case of Aikman – vs- Muchoki (1982) eKLR at page 4/6 where it was held that a court of law ought never to condone and allow to continue a flouting of the law and that equity will not assist lawbreakers.

18. I therefore find and hold that the second principle is established by dint of exposure of the applicant to an illegality, I need not deal with the third principle as I am not in any doubt on the first two principles.

19. As regards costs, section 12(1) (k) of Cap. 301 grants this Tribunal discretion to grant costs of the case to either party or none. I have no reasons to deny the applicant costs in this matter.

20. In conclusion, the final orders that commend to me are:-i.The tenant’s reference and application dated 31st January 2021 is allowed.ii.The Respondents are hereby restrained by way of injunction from effecting the rent increment, evicting or in any other way interfering with the tenant’s tenancy in plot no. 209/136/98 Kirinyaga Road, Shop no. 1, Nairobi City on the basis of the notice dated September 6, 2021 or without adhering to provisions of Cap. 301, Laws of Kenya.iii.The Landlord’s notice to increase rent dated 6th September 2021 is declared invalid and is set aside.iv.The landlord is at liberty to issue a proper notice.v.Costs of the case assessed at Kshs.20,000/- is awarded to the tenant against the Respondents.

It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 7TH DAY OF SEPTEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of:Wageni for the Tenant/ApplicantAkango for the Respondent