[2021] KEBPRT 54 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 60 OF 2020 (EMBU)

GLADYS WAMBUI MUCHIRI…………………..…...…………TENANT/APPLICANT

VERSUS

STANLEY KAMAU KATHARA……………………..……LANDLORD/RESPONDENT

RULING

1. The Tenant’s application dated 15th December 2020 was amended by the Tenant’s application dated 15th September 2021. In the application dated 15th September 2021, the Tenant/Applicant seeks an order restraining the Landlord from in any manner whatsoever interfering with the Tenant’s quiet possession of the tenancy premises except in accordance with the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 of the Laws of Kenya.

2. The application is supported by the affidavit of Gladys Wambui Muchiri, the Tenant/Applicant and which I summarize as follows;

a. That the Tenant entered into a tenancy agreement with the Respondent on 7th May 2020.

b. That the Tenant operates a hardware shop in the demised premises.

c. That in December 2020, the Respondent verbally threatened to evict the Tenant effective January 2021.

d. That the conduct of the Respondent has affected the Tenant’s business.

e. That the conduct of the Tenant is not justified in law.

3. The Respondent has opposed the application (which was later amended) by his replying affidavit sworn on which I summarize as follows;

a. That it is true that the Applicant is the Respondent’s Tenant as per their tenancy agreement dated 7th May 2000 a copy of which the Respondent has attached to his affidavit.

b. That the Respondent did not give the Tenant the termination notice set out under clause 2 of their tenancy agreement.

c. That the Tenant has breached the tenancy agreement and particularly;

i. The Tenant has encroached into other areas of the Respondent’s premises and blocked the gate leading to the rear of the plot, as a result, the Tenants who were occupying the rear rooms have vacated the demised premises.

ii. That the Tenant has put up a chicken coop at the rear of the premises which structure is unauthorized.

iii. That the Tenant has converted the rear part of the plot into a workshop and garden where she grows sweet potatoes and pumpkins.

d. That the Tenant has carried alterations without the consent of the Landlord and in contravention of clause 3(4) of the tenancy agreement.

e. That the conduct of the Tenant and her operations outside the premises constitute a nuisance.

f. The other Tenants have complained of mosquitoes, snakes and other insects as a result of the Tenant converting the demised premises into a garden.

g. That the Tenant is in clear breach of clause 3(x) and (xi) of the tenancy agreement.

h. That the Respondent seeks to have the Tenant ordered to vacate the premises.

4. The application came up for hearing on 4th October 2021 when the parties tendered oral submissions. I summarize the submissions of the Tenant/Applicant as follows;

a.That the Applicant seeks prayer 3 of the application dated 15th September 2021.

b. That though the Respondent is keen to have the Tenant evicted, the procedure under section 4 of Cap 301 ought to be followed.

c. That the Landlord ought to have served the notice as per the Act and the Tenant allowed to respond to the same.

d. That the Landlord has admitted that the did not issue the required notice.

e. That the Landlord cannot ride on a complaint by the Tenant.

5. The oral submissions of the Respondent may be summarized as follows;

a.The Respondent sought to rely on his replying affidavit sworn on 8th April 2021.

b. That the Tenant is in breach of clause 3(4) of the tenancy agreement.

c. That the agreement required the Tenant to seek the Landlord’s consent in carrying out any activities in the demised premises.

d. That the Respondent has lost other Tenants on account of the activities of the Tenant.

e. That the Respondent would like the Tenant to vacate the premises but he also seeks directions of the tribunal to issue her with a termination notice.

f. That the Respondent does not live in the suit premises and has not harassed the Tenant in any way.

6. The only issue that arises for determination in this application is whether the Applicant is entitled to the grant of prayer 3 of the application dated 15th September 2021.

7. I have perused the tenancy agreement between the parties. Though the same is in writing, it does not state the term thereof. In the absence of a clause specifically removing the agreement from the ambit of the five-year term required of controlled tenancies, I will hold that the tenancy between the parties herein is a controlled tenancy and therefore subject to the provisions of Cap 301 of the Laws of Kenya.

8. The Tenant’s complaint is that the Respondent issued her with a verbal notice to vacate the suit premises by January 2021. The Tenant further claims that the Landlord has not given to her the notice required under section 4 of Cap 301. The Respondent does not challenge this position by the Tenant as he indeed agrees that he issued no notice to the Tenant. At paragraph 6 of his replying affidavit, the Tenant states;

“That as per clause 2 of our said agreement there is an option to terminate the tenancy agreement by giving one calendar month notice in writing or one month equivalent in lieu of notice which I had not given.”

9. It is therefore clear that the Respondent did not give the Tenant the notice required under section 4 of Cap 301 or the one required under clause 2 of the tenancy agreement between the parties.

10. Section 4(2) of Cap 301 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 a tenancy shall give notice in that behalf to the Tenant in the prescribed form.”

I do find that, as the Respondent indeed agrees, the Tenant was not given the notice required under the above provision of Cap 301 and the tenancy agreement between the parties.

11. The Respondent’s main complaint is that the Tenant is in breach of the tenancy agreement and ought therefore to be ordered to vacate. Whereas I am not in a position to determine at this interlocutory stage whether indeed the Tenant has committed the breaches she is accused of by the Landlord, I am of the view that the alleged breaches of the tenancy agreement ought to form part of the reasons given in a notice to terminate tenancy under section 4 of Cap 301.

12. Upon receipt of a notice detailing the breaches upon which the termination is hinged, the Tenant would then be at liberty to challenge the notice by way of a reference. The Landlord has not issued the said notice. I am also of the view that the breaches if any, ought to be determined during the main hearing of the reference and not at this interlocutory stage.

13. The Tenant only seeks that the Respondent follows the law in having her tenancy terminated, on his part and in his oral submissions, the Respondent also seeks directions from the Tribunal that he be allowed to issue a notice to terminate the tenancy to the Tenant. I find both parties to be legally agreed on what the law requires of them.

14. Having found that the verbal notice to terminate the tenancy herein was illegal and having further found that the Landlord did not issue the notice to terminate as required under the law, I now allow the Tenant’s application in terms of prayer 3 and 4.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon P. May this 10th day of December, 2021 in the presence of Muchoma for the Tenant/Applicant and in the absence of theLandlord.

HON. P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL