[2025] KEBPRT 194 (KLR)

Iriga & another (Both t/a Blazers Liquor Wholesale & Retail) v Njoroge t/a Hillsam Venture Limited (Tribunal Case E574 of 2024) [2025] KEBPRT 194 (KLR) (7 February 2025) (Ruling)

Neutral citation: [2025] KEBPRT 194 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E574 of 2024

M Makori, Member

February 7, 2025

Between

Maureen Wanjiiru Iriga

1st Tenant

Samuel Gitau

2nd Tenant

Both t/a Blazers Liquor Wholesale & Retail

and

Samuel Njoroge t/a Hillsam Venture Limited

Landlord

Ruling

1. This is a ruling on the validity of a termination notice issued by the Applicant/Landlord to the Respondent/Tenant under the provisions of the Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act, Cap. 301 (hereinafter referred to as “Cap. 301”).

2. The notice in question is dated 15th January, 2024, served upon the Tenant on 15th January, 2024, and intended to take effect on 1st April, 2024. The Tenant has challenged the validity of the notice on grounds of non-compliance with the statutory requirements under Cap. 301.

3. The Applicant filed Reference and a Notice of Motion Application challenging the Respondent’s action as highlighted above. The said application was opposed by the Landlord and by consent of parties the application and reference were to be canvassed by way of written submissions in addition to having gave oral testimony in court on 5th November, 2024.

4. Particularly, the Tribunal is called upon to determine whether the Termination Notice Dated 15th January, 2024 complies with the statutory provisions and whether it is valid and enforceable.

Issues for Determination 5. The following issues arise for determination:i.Whether the termination notice complies with Section 4(2) of the Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act, Cap. 301. ii.Whether the notice gave the Tenant adequate time in accordance with the law.iii.Whether the notice is valid and enforceable.

Legal Framework 6. The termination of a controlled tenancy in Kenya is governed by Section 4(2) of Cap. 301, which provides:“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 and shall not, where the tenant is entitled to compensation under this Act, terminate the tenancy or alter any term or condition thereof to the detriment of the tenant, unless such compensation has been agreed upon or has been determined by the tribunal."

7. Section 4(4) further provides that the notice must give at least two months’ notice before the intended termination or alteration takes effect. This statutory requirement is mandatory and not subject to variation by the landlord or tenant.

8. In Kasarani Investments Holdings Limited v Kenya Breweries Limited [2017] eKLR, the court emphasized that strict compliance with the statutory requirements is mandatory, and any deviation renders the notice invalid.

Analysis A. Compliance with the Two-Month Notice Requirement 9. The landlord issued a notice of termination of tenancy dated 15th January 2024, intending for it to take effect on 1st April 2024. The tenant filed a reference opposing the notice, arguing that it was defective and lacked substantial grounds for termination. The matter was heard before this Tribunal, and both parties presented their arguments.

10. The courts have consistently held that the computation of time under Cap. 301 begins from the date the Tenant receives the notice and not the date indicated on the notice. This principle was reiterated in Heights Limited v Kenya Railways Corporation [2019] eKLR, where the court stated that the service date is the critical date for determining compliance with the notice period.

11. In expounding on the threshold that should be met by a Landlord placing reliance on Section 7(1)(f) of the Act as a ground for termination of tenancy, the High Court in the case of Auto Engineering Ltd Versus M. Gonella & Co. Ltd (1978) eKLR stated as follows: -“…First, it is correct that the wording of section 7(1)(f) is “demolish or reconstruct”, and not merely to effect repairs. The distinction can of course be important; for while mere repairs may not necessarily mean that the landlord needs possession of the premises, an intended demolition or reconstruction of a substantial part of the premises would in all probability be frustrated if the landlord could not obtain possession, and that is why this provision exists.”

12. In the present case, the notice was issued on 15th January 2024, giving the tenant up to 1st April 2024 to vacate. This period covers two months and 17 days, which satisfies the statutory requirement under Section 4(2).

B. Adequacy of the Notice Period 13. The purpose of the two-month notice requirement under Cap. 301 is to afford the Tenant sufficient time to prepare for the termination or alteration of the tenancy. By providing only two months and 17 days, the Landlord granted the Tenant of the statutory right to adequate preparation. This is in line with the spirit and letter of Cap. 301, which seeks to balance the rights and obligations of landlords and tenants in controlled tenancies.

14. In Mbiti v. Manoti (Tribunal Case E058 of 2022) [2024] KEBPRT 585; The Tribunal held that a valid termination notice must provide at least two months' notice. The failure to do so renders the notice invalid

C. Validity and Enforceability of the Notice 15. The Landlord argued that the notice substantially complied with the requirements of Cap. 301 and should therefore be upheld. The law requires strict adherence, and failure to meet even one requirement renders the notice null and void.

16. In Riverside Investments Ltd v. National Bank of Kenya Ltd [2020] eKLR, the Court of Appeal upheld a termination where the landlord proved substantial grounds for repossession, demonstrating legitimate intent.

17. I am also alive to the position of the law on the issue of a termination notice as discussed in Manaver N. Alibhai T/A Diani Boutique vs. South Coast Fitness & Sports Centre Limited, Civil Appeal No. 203 of 1994, stated that: -“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not 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 specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The notice must also specify the ground upon which termination is sought. The prescribed notice in Form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice.

18. In the present case, the Landlord provided for two months and 17 days before they could terminate and enforce the orders thereto.

Conclusion and Orders 19. The termination notice dated 15th January 2024, served on the Tenant on 15th January 2024, and intended to take effect on 1st April,2024 is hereby declared valid and enforceable for comply with the mandatory two-month notice requirement under Section 4(2) of Cap. 301.

20. Consequently, the following orders are issued:a.The termination of the tenancy Dated 15th January 2024 served on 15th January 2024 and to effect on 15th January 2024 is legal, valid and effective for enforcement.b.The Tenants shall pay all the outstanding rent arrears if any and vacate the demised premises with 60 days of today.c.In default of (b) above the Landlord shall be at liberty to Distress for Rent in the usual manner.d.The OCS in the nearest Police Station to ensure compliance.e.Each party shall bear their own costs in this matter.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 7TH FEBRUARY, 2025. HON. MIKE MAKORI (MR.)BUSINESS PREMISES RENT TRIBUNAL