[2021] KEBPRT 166 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO E111 OF 2021 (NAIROBI)

ISAAC NJUGUNA KARIUKI.....................................................................TENANT/APPLICANT

VERSUS

REHAB MUTHONI NDERI...............................................................LANDLADY/RESPONDENT

RULING

1. The Tenant’s/Applicant’s notice of motion dated 11th May 2021seeks the following orders;

a. Spent

b. Spent

c. That the Defendant/Landlady by herself, her servants, employees and/or agents be restrained from increasing rent, evicting, intimidating the Tenant and/or in any manner interfering with his tenancy pending the hearing and determination of the suit.

d. That the Landlady be compelled to release all the Tenants detained goods in the subletted/rooms.

2. The grounds upon which the application is brought and the affidavit in support thereof may be summarized as follows;

a. That the Landlady has not served the Tenant with a legal notice or court order warranting her illegal actions.

b. That the Tenant has signed a lease agreement for the demised premises for five years paying a monthly rent of Kshs 37000/-.

c. That the rent is fully paid up to April 2021.

d. That on 30th April 2021, the Landlady verbally threatened to increase rent to Kshs 90,000/- per month.

e. That the Landlady without the consent of the Tenant has sub-let one of the rooms to another Tenant and continues to detain some of the Tenant’s goods in the sublet room.

f. That this being a controlled tenancy the Landlady cannot determine it without the leave of the Tribunal and in accordance with the provisions of Cap 301 of the Laws of Kenya.

3. The application is opposed. The Respondent has filed a replying affidavit sworn on 28th May 2021 and which I summarize as follows;

a. That by a lease agreement dated 5th January 2021, she leased the demised premises together with a carwash yard to the Tenant for a period of five years. (The lease agreement is attached to the affidavit).

b. That it was a term of the lease agreement that the Tenant would not underlet, assign, transfer, charge or part with possession of the demised premises or any part thereof without the prior written consent of the Landlady/Respondent.

c. That in March 2021, she discovered that the Tenant had placed an advertisement to let the premises to the general public.

d. That the Respondent further learnt that the Applicant was in the process of letting out shops Nos. 1 and 3 and had indeed received a deposit of Kshs 25,000 from one Elizabeth for shop No. 3.

e. That the Tenant was therefore issued with a termination of tenancy notice which due to its defectiveness the Respondent wishes to withdraw the same.

f. That in April 2021, the Tenant voluntarily surrendered shop Nos 1 and 3 and the carwash yard and refunded the deposit he had received from Elizabeth.

g. That the Tenant was left with shop No 2 which he is still in possession of date.

h. That the Landlady has now entered into new tenancy agreements for the surrendered shops.

i. That the Tenant has never utilized the two surrendered premises.

j. That the Respondent has not increased rent to Kshs 90,000/- as alleged by the Tenant/Applicant.

4. The Landlady has further deponed in her affidavit sworn on 16th June 2021 in support of her application dated 16th June 2021.

a. That by the time the orders of 12th May 2021 were issued, the Landlady had already sublet shop No 3 to a third party and orders of the Tribunal cannot therefore be enforced in respect of that shop.

b. That should the orders in respect of shop No. 3 be sustained, the Landlady who is already in a contractual relationship with the third party stands to suffer substantial loss.

c. That the third party is in possession of the premises.

5. The Tenant/Applicant has filed his written submissions which I proceed to summarize as follows;

a. That the Landlady has disregarded the orders issued by the Tribunal on 13th May 2021 by refusing to open the 3rd premises which remains locked with the Tenant’s goods inside.

b. That the Applicant is a protected Tenant for a period of five years at Kshs 37,000per month for the three shops.

c. That the Applicant approached the Landlady for consent to sublet one of the shops, the Landlady consented as long as she got the rent in time. The Applicant did find a subtenant by name Elizabeth Wangari.

d. That the Tenant/Applicant rescinded his agreement with the said Elizabeth Wangari.

e. That the Tenant/Applicant rescinded his agreement with the said Elizabeth Wangari when the Landlady became interested in her.

f. That on 2nd April 2021, the Tenant received a termination notice.

g. That the Respondent proceeded to inform the Tenant that rent had been increased to Kshs 90,000/- per month.

h. That the Applicant later learnt that the Respondent had given out shops No. 1 and 3 to third parties.

i. That the Respondent had admitted that the notice issued to the Applicant is illegal and sought to have the same withdrawn.

j. That the Applicant’s attempt to increase rent is void.

k. That the Landlord was all along aware of the “to let” sign which confirms that she had consented to the Applicant to sublet.

l. That the tenancy notice is admittedly invalid and therefore the tenancy remains intact.

m. That there is no evidence of a sublease.

6. The Respondent’s written submissions may be summarized as follows;

a. The Respondent has conceded that the notice to terminate the tenancy was not in the prescribed form.

b. That the Applicant has admitted to leasing one of the shops to Elizabeth Wangari, a breach of the lease agreement and which breach the Tenant was notified of by a letter dated 1st April 2021.

c. That the Tenant/Applicant refunded a deposit ofKshs 25,000/-to the said Elizabeth Wangari and surrendered shop 1 and 3 together with the carwash yard to the Respondent.

d. That the receipt of the deposit on shop No 3 without the prior written consent of the Landlord/Respondent was clear breach of the term of the lease by the Tenant.

e. The allegations that the Landlord granted her consent to the Tenant to sublet the premises are not in the pleadings but have been introduced in the submissions of the Tenant.

f. That the Respondent did not require any order of the Tribunal to obtain possession of shop No. 3.

g. That the Applicant has disputed the fact that he surrendered the shops (1 and 3) and this issue can only be determined at the full hearing of the reference.

7. The issues that arise for determination in my humble view are the following;

a. Whether the tenancy between the Applicant/Tenant and the Landlord/Respondent is a controlled tenancy.

b. Whether the Tenant/Applicant is entitled to the prayers sought in his application dated 11th May 2021.

8. On issue (a)

a. The lease between the parties herein is the one dated 5th January 2021. It is for a period of five years commencing 1st January 2021 to 31st December 2025. The tenancy is therefore a controlled tenancy as per the definition of a controlled tenancy under section 2(1) of Cap 301.

9. On issue (b)

a. The reference filed by the Tenant and dated 11th May 2021, expressed to be brought under section 12(4) of Cap 301 is to the effect that;

“The Defendant/Landlady illegally served me with an illegal termination notice to vacate from the suit premises without any justifiable reason. The Defendant/Landlady also instructed me to increase rent from Kshs 37,000/- to Kshs 90,000/- without any justifiable reason.

I humbly pray for an injunction order restraining the Defendant/Landlady from evicting, harassing me, pending the hearing and determination and an order restraining the Landlady from increasing rent.”

10. The orders sought for in the application dated 11th May 2021 have been set out in the introductory part of this ruling.

11. The Tenant’s/Applicant’s reference is spent for the following reasons;

a. The Landlord has already admitted that the tenancy notice issued to the Tenant/Applicant is not in the prescribed form and has indeed sought to have the same withdrawn.

b. The Landlord/Respondent has categorically stated that he does not intend to increase the rent payable for shop No. 2.

c. The premises comprised in the lease in favour of the Tenant/Applicant was a hardware and carwash business, clause 4 of the said lease agreement provided as follows;

“The lessor and the lesee hereby agrees that the lessee shall pay a deposit of Kshs 37,000/- only in respect of the hardware shops and the front yard for the carwash business”.

d. It is clear that the three shops being referred to in the pleadings of the parties herein are the hardware shops referred to at paragraph/clause 4 of the lease agreement.

12. The Landlady has stated that the Tenant breached the said lease agreement by purporting to sublet one of the shops to one Elizabeth Wangari. Although that attempt has indeed been admitted by the Tenant, the sublease did not come to fruition as the Landlady seems to have taken over the sub-Tenant. It is also not clear how the other shops came to be let to another party though the Landlady claims that the Tenant surrendered the two shops. The Tenant has contested the alleged surrender of the shops.

13. I have already found that the tenancy between the parties herein is a controlled tenancy. The demised premises are clearly defined at clause 2(b) and 4 of the lease agreement. The Landlady could only have terminated the tenancy or altered any of the terms therein as provided under section 4 (1) and 4 (2) of Cap 301 which is in the following terms;

4(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.

4(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.

14. The Landlady in purporting to take over the two shops (No 1 and 3) was clearly in breach of section 4(1) and (2) of Cap 301 above. If indeed the Tenant was in breach of the lease agreement between him and the Landlady, such breach would have formed one of the reasons for the termination of the tenancy to be incorporated in the notice to terminate or alter terms of the tenancy envisaged by section 4(1) and (2) of Cap 301.

15. The Landlady issued no such notice. Whether or not the Tenant/Applicant was in breach of the lease agreement does not remove the obligation of the Landlady under the Act to commence the termination or alteration of the terms of the lease by a valid termination notice under section 4(2) of Cap 301.

16. Any subsequent purported leasing out of any part of the premises comprised in the lease to third parties would be in furtherance of an illegality and cannot defeat the interests of the Tenant/Applicant. The premises remained leased to the Tenant/Applicant until he either voluntarily consented to have part thereof or the whole leased out or until the lease was properly terminated or altered under the provisions of Cap 301.

17. In view of the foregoing, I do find merit in the Tenant’s application dated 11th May 2021 and the same is allowed in terms of prayer 3, 4, 5 and 6 thereof.

18. Further, in view of the directions issued on 12th July 2021 to the effect that the outcome in the motion dated 11th May 2021 shall be deemed to have determined the motion dated 16th June 2021, the Landlord’s motion dated 16th June 2021 is hereby dismissed with costs to the Tenant.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this 15thday ofOctober 2021 in the presence of Miss OmondiforOtugafor theLandlady/RespondentandMs Nyakundifor theTenant/Applicant.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL