[2025] KEBPRT 145 (KLR)

Imtiaz v Mohamed (Tribunal Case E019 of 2025) [2025] KEBPRT 145 (KLR) (21 February 2025) (Ruling)

Neutral citation: [2025] KEBPRT 145 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E019 of 2025

J Osodo, Chair & Gakuhi Chege, Member

February 21, 2025

Between

Jamal Imtiaz

Tenant

and

Jamal Mohamed

Landlord

Ruling

A. Dispute Background 1. The tenant/applicant moved this Tribunal vide a Reference under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 dated 10th January 2025 with complaints that the landlord had issued an illegal notice of rent increment dated 27th November 2024 and that the landlord had started sending goons to the suit premises to threaten the tenant.

2. The tenant/applicant also filed a notice of motion under a certificate of urgency in which he sought for the following orders; -i.That the application be certified urgent.ii.That a temporary order be issued restraining the respondent from unlawfully increasing the rent or otherwise interfering with the tenant’s tenancy at the suit premises pending hearing of the application inter-partes.iii.That an order be issued restraining the respondent from interfering with the tenant’s tenancy at the suit premises pending hearing and determination of the Complaint.iv.That the landlord’s notice dated 27th November 2024 be declared null and void ab-initio.v.That the landlord does pay the costs of the application.

3. The application is supported by an affidavit of even date in which the applicant/tenant deposes as follows; -i.That he is a businessman operating a perfume shop and other accessories/merchandise within Mombasa at Plot No. 99/XX/MOMBASA ISLAND.ii.That in December 2024, the landlord served him with an illegal notice dated 27th November 2024 which was to take effect on 1st January 2025 seeking to increase rent. A copy of the said notice is annexed as “JI-1”.iii.That he had been at the suit premises for 10 years now paying a monthly rent of KES. 70,000 and has never defaulted.iv.That the landlord has unlawfully increased rent from KES. 70,000 to KES. 130,000. v.That the landlord had started sending goons to the suit premises with threats to evict, if he failed to pay the illegally increased rent.vi.That he has heavily invested in stocking his shop to a tune of KES. 2,000,000 and had earned a goodwill of more than KES. 3,000,000 which will be lost if the business is disturbed due to the landlord’s unlawful actions.

4. The application is opposed vide a replying affidavit dated 29th January 2025 in which the respondent deposes as follows; -i.That the application is devoid of merit and is intended to prevent the landlord from reviewing rent despite the fact that the rent was last reviewed 10 years ago.ii.That the allegations that the tenant was served with the notice in December 2024 are false as the landlord served it on 27th November 2024 but the tenant refused to sign in acknowledgement of receipt.iii.That the landlord’s notice and letter explained to the tenant the circumstances leading to the review of rent from KES. 70,000 to KES. 130,000. A copy of the notice and letter are annexed as “JMB-1”.iv.That the allegation of sending goons is untrue.v.That after issuing the said notice, the tenant did not object or notify the landlord whether or not he agreed with the landlord’s notice.vi.That after paying KES. 70,000, the tenant is in arrears of KES. 60,000. That on 23rd January 2025, the landlord sent the tenant a letter reminding him to clear the rent arrears of KES. 60,000. A copy of the letter is annexed as “JMB-2”.

5. At a court hearing on 20th January 2025, the court ordered that the application be disposed of by way of written submissions. Only the tenant complied by filing his submissions dated 7th February 2025. We shall consider the submissions while dealing with the issues for determination.

B. Issues for determination 6. The following are the issues for determination; -a.Whether the notice to increase rent dated 27th November 2024 is valid.b.Whether the application dated 10th January 2025 is merited.c.Who shall bear the costs of the application?

Issue (a) Whether the notice to increase rent dated 27th November 2024 is valid. 7. The landlord through his advocate issued the tenant with a notice to review/increase the monthly rent from the current rent of KES. 70,000 to KES. 130,000. The said notice is dated 27th November 2024 and was due to take effect on 1st January 2025.

8. The tenant in his written submissions has directed the court to the Section 4(4) of Cap 301, Laws of Kenya which states thus; -“No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party, as shall be specified therein:”

9. We note that the said notice is dated 27th November 2024 and was expressed to take effect on 1st January 2025 which gave the tenant a period of less than 2 months prescribed in the Act.

10. The tenant in his affidavit as well as submissions avers that the landlord served him with the said notice in December 2024, an allegation which the landlord denies in his replying affidavit. There is however no affidavit of service to ascertain the said claim.

11. The time of service notwithstanding, the fact that the said notice was due to take effect in less than 2 months renders the notice defective according to Section 4 (4) quoted above.

12. Based on the analysis above, we find that the said Notice to alter the terms of tenancy (increase the monthly rent) dated 27th November 2024 is irregular.

Issue (b) Whether the application dated 10th January 2025 is merited. 13. The tenant/applicant filed an application seeking that the landlord be restrained from interfering with his tenancy at the suit premises. The tenant has also sought that the landlord’s notice dated 27th November 2024 be declared null and void.

14. The tribunal has already established that the said notice is illegal and therefore the orders sought by the tenant are merited.

15. We shall order that the application dated 10th January 2025 be allowed as prayed.

Issue (c) Who shall bear the costs of the application? 16. Under Section 12(1)(k) of Cap. 301, Laws of Kenya, costs of any suit before this Tribunal are in its discretion but always follow the event unless for good reasons otherwise ordered. Having found that the notice issued by the landlord to the tenant is illegal, we shall award costs to the applicant/tenant.

C. Orders 17. In conclusion, the following final orders commend to us; -a.The application dated 10th January 2025 is hereby allowed as prayed.b.The landlord’s notice to alter the terms of tenancy (increase monthly rent) dated 27th November 2024 is declared null and void.c.The landlord is at liberty to issue a proper notice in accordance with Section 4 of Cap 301, Laws of Kenya.d.The tenant shall continue to pay the current monthly rent of KES. 70,000 as and when it falls due.e.The reference dated 10th January 2025 is settled in termsf.Costs of KES. 25,000 to the tenant to be offset against the rent account.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST FEBRUARY 2025HON. JOYCE AKINYI OSODO(PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGE(MEMBER)In the presence of:Bosire for tenant/applicantMureti for Landlord/respondent