[2025] KEBPRT 179 (KLR)

Jeizan Mombasa Ventures v Kome & 41 others (Tribunal Case E1134 of 2024) [2025] KEBPRT 179 (KLR) (14 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 179 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1134 of 2024

CN Mugambi, Chair

March 14, 2025

Between

Jeizan Mombasa Ventures

Applicant

and

Diana Kome Kome & 41 others

Respondent

Ruling

Introduction 1. The Landlord’s Application dated 18. 10. 2024 seeks the following orders;-a.That an order of eviction do issue against the Tenants pending the hearing and determination of this Reference.b.That the Tribunal be pleased to issue an order to levy distress to recover the outstanding rent arrears from the Tenants.c.That the Tribunal be pleased to issue an order of eviction to be executed by a licensed auctioneer.d.That the Tribunal be pleased to issue an order for mesne profits against the Tenants from 1st January 2024 until delivery of vacant possession.e.That the OCS Central Police Station do provide security and ensure compliance with the orders sought.f.Costs.

The Landlord’s Affidavit 2. The Landlord’s affidavit in support of its Application may be summarized as follows;-a.That the Tenants were all served with notices to terminate their tenancies on 31. 7.2024. b.That Counsel for the Landlord wrote to the Tribunal to inquire if the Tenants had filed any References to the Tribunal and the response was that no Reference had been filed.c.That the Tenants failure to pay rent for the period January 2024 to July 2024 made it necessary for the Landlord to instruct Mason auctioneers on 17. 7.2024 to levy distress for the said rent.d.That the Landlord issued notices to the Tenants to pay rent by 10. 06. 2024 and vacate the premises.e.That the Tenants outstanding rent arrears are as contained in the letter dated 12. 01. 2024 sent to Counsel for the Landlord by the Landlord’s Management Agent.f.That the current rent arrears stand at Kshs. 1,303,410/= and these arrears are causing the Landlord financial constraints.g.That the Landlord seeks to terminate the tenancies because the Tenants are persistent rent defaulters.h.That the Tenants have not challenged the notices to terminate their tenancies even after they were duly served with the said notices.i.That the Landlord seeks orders of eviction in this matter as the Tenants are still occupying the premises without the Landlord’s consent and despite being served with the notices to terminate their tenancy.

The Tenants’ Grounds of Opposition 3. The Tenants have filed grounds of Opposition dated 2. 11. 2024 which may be summarized as follows;-a.That the notice to vacate by the Landlord is not compliant with the provisions of Section 4 of Cap 301 of the Laws of Kenya.b.That the Landlord has not complied with Section 3(3) of Cap 301 of the Laws of Kenya.c.That the Landlord and his agents have threatened the Tenants against approaching the court/Tribunal.d.That the Landlord has been escalating the rent without notice.e.That the Landlord has not issued payment receipts to the Tenants.f.That the Landlord does not have any of the grounds of termination of tenancy set out under Section 7 of Cap 301 and has not provided any proof of the intended renovations.

The Landlord’s response to the Grounds of Opposition by the Tenants 4. The Landlord’s affidavit dated 9. 11. 2024 may be summarized as follows;-a.That the Tenants were served with notices to terminate their tenancies dated 29. 7.2024 on 31. 7.2024. b.That the grounds upon which termination is sought have been specified in the notices in accordance to Section 4(5) of Cap 301. c.That the Landlord has applied to the Nairobi City Council to undertake general renovations.d.That the Landlord has maintained a rent book, copies of which have been annexed to his affidavit.e.That the Landlord issued notices to increase rent from Kshs. 250/= to Kshs. 300/= and the Tenants continued to pay the same without any objection.f.That the Tenants pay rent through Mpesa for which they obtain transaction proof for payment of rent.g.That the Tenants have been issued with notices to terminate their tenancies on account of desired renovations and non-payment of rent.

The Landlord’s Further Replying Affidavit Pursuant to the Directions issued on 9. 12. 2024 5. The aforesaid Landlord’s affidavit sworn on (undated) may be summarized as follows;-a.That the Tenants were issued with demand letters dated 12. 1.2024 and when the Tenants failed to pay the rent, the Landlord instructed auctioneers to levy distress.b.That the Tenants have not complied with court orders that they pay rent.c.That Tenant Nos. 1, 15, 18, 29, 36, 39, 41 and 42 have vacated the premises with outstanding rent arrears.d.That the rest of the Tenants have rent arrears as shown under paragraph 9 of the affidavit.

Analysis and determination 6. The issues that arise for determination are the following;-a.Which is the relevant notice of termination of tenancy in this suit and whether the said notice is a valid notice under the provisions of Section 4(2) of Cap 301. b.Whether the Landlord is entitled to the prayers sought in its Application.

Issue A: Which is the relevant notice of termination of tenancy in this suit and whether the said notice is a valid notice under the provisions of Section 4(2) of Cap 301. 7. The notices to vacate annexed to the Landlord’s Affidavit dated 18. 10. 2024 are certainly not the notices anticipated by the provisions of Section 4(2) of the Act. The said notices are not in the prescribed form and whereas they require the Tenants to vacate the premises by 10th June 2024, the said notices are not dated.

8. But are these the notices that the process server and the Respondent are referring to in their affidavits? I do not think so. In the Affidavit of service filed by Mr. FRANCIS KILONZO MUNYAO, the process server has deponed as follows;-“That on 31. 7.2024 I received from FAUZ ISLAM the Landlord at 18 River Road Nairobi erected on L.R. No. 209/504 Nairobi and director of Jeizan Mombasa Ventures Limited of P.O. Box 22020-00400 Nairobi. Landlord’s notice to terminate or alter terms of tenancy with instructions to serve the same upon Tenants occupying the premises as per a list provided to me by the Landlord bearing the names of all the Tenants and their rooms/table numbers.”

9. The notices attached to the affidavit of the Landlord required the Tenants to have vacated the suit premises by the 16. 06. 2024 and they could therefore not reasonably be the notices being served upon the Tenants on 31. 7.2024 long after the deadline.

10. I have also seen the letter from the Tribunal dated 9. 10. 2024. In the said letter, the court administrator states,“This is to confirm that the listed Tenants (list attached) in your letter have not filed any responses and/or objection to the Landlord’s notice of termination of their tenancy dated 29. 7.2024. ”

11. The process server aforesaid attended court on 9. 12. 2024 and confirmed that he is the one who deponed to the affidavit of service of 1. 08. 2024 annexed to the motion dated 18. 10. 2024, and filed in court on 22. 10. 2024. The process server further confirmed that the Affidavit of service dated/sworn on 1. 08. 2024 was in relation to the notices to terminate tenancy dated 29. 7.2024 given to him by the Counsel for the Landlord for service upon the Tenants.

12. I do note that the Tenants have not filed any depositions denying the receipt of the notices to terminate tenancy dated 29. 7.2024 and the depositions by the process server remains unchallenged.It is also not possible that the expired notice to vacate by the 10. 6.2024 could have been the notice to terminate tenancy issued to the Tenants on 31. 7.2024.

13. In answer to this issue, I do return a finding that the relevant notice to terminate tenancy in these proceedings is the one dated 29. 7.2024, and I further find that the same was duly served upon the Tenants.

14. I further do find the notices dated 29. 7.2024 to be in the prescribed form and to have met all the requirements of Section 4 of Cap 301 and therefore valid.

Issue B: Whether the Landlord is entitled to the prayers sought in its Application 15. The Landlord has sought for leave to levy distress for rent arrears, mesne profits from 1. 1.2024 and an order of eviction against all the Tenants.On the issue of rent arrears, I note that the Tenants have complained of unauthorized rent increments in their Grounds of opposition. That is an issue to be determined upon a proper hearing. The documents produced by the Landlord as the “rent book” are not clear on the monthly or weekly rent payable by each and every one of the Tenants and the fact that the Tenants have kept on paying their rent as evidenced by their latest flings, it has become difficult for the Tribunal to arrive at any certain figures of rent that are owed to the Landlord if any.

16. The notices to terminate tenancy have been sought on the grounds that the Landlord intends to renovate the premises, non-payment of rent and that the Landlord intends to occupy the premises for a period not less than one year. The Tenants whom I have found had been served with these notices did not file any Reference objecting to the notices under Section 6(1) of Cap 301 the consequence of which would be that the notices would be effected on the effective date (1. 10. 2024) as indicated in the notices. I however note the consideration confusion caused by the Landlord’s notice which required the Tenants to vacate the suit premises by 10. 6.2024 and which was annexed to the affidavit of the Landlord. I think this is a situation which calls for the exercise of the Tribunal’s discretion in the proviso to Section 6(1) of Cap 301 which provides as follows;-“provided that a Tribunal may for sufficient reason and/or such conditions as it may think, permit such a reference notwithstanding that the receiving party has not complied with any of the requirements of this section.”

Disposition 17. In the circumstances, I will make the following orders in disposing of this Application.a.That the Tenants will file their References to the Notices to terminate tenancy dated 29. 7.2024 within the next fourteen (14) days, failing which, the notices to terminate tenancy shall automatically take effect.b.That Counsel for the parties will within the next fourteen (14) days file and exchange between themselves proper statements of accounts in a clear summary of the rent paid by each of the Tenants, the rent received by the Landlord, clear indication of the monthly/weekly rent and the amounts outstanding if any.c.That the issue of leave to levy distress for rent shall be determined after the parties comply with order (b) above.d.This matter be mentioned on 14. 4.2025 to confirm compliance with the above orders.e.Each party will bear their own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF MARCH, 2025. HON. CYPRIAN MUGAMBI - CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Bakari holding brief for Mr. Hasham for the Landlord/Applicant and in the absence of the Tenants and Counsel