[2020] KEBPRT 54 (KLR)
The Tribunal found that the tenancy between the parties was a controlled tenancy within the meaning of Cap 301 due to the presence of a termination clause in the lease. The expiry of the lease did not alter the controlled nature of the tenancy, and the landlord was required to serve a statutory notice in the...
Source-derived case information.
- Citation
- [2020] KEBPRT 54 (KLR)
- Parties
- Applicant: Joseph Wamburu Tumbu; Respondent: Fatuma Hassan Awath; Respondent: Abdi Nasser Ali Mohamed; Respondent: Abudulkadir Ali; Respondent: Mohammed Khadhar; Respondent: Mare Investment Enterprises
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 25 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Landlord's Application to Set Aside Interim Orders
- Outcome
- landlord's application dismissed
- Legal Topics
- Controlled Tenancy, Termination of Lease, Interim Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Wamburu Tumbu
Applicant
Fatuma Hassan Awath
Respondent
Abdi Nasser Ali Mohamed
Respondent
Abudulkadir Ali
Respondent
Mohammed Khadhar
Respondent
Mare Investment Enterprises
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Landlord's Application to Set Aside Interim Orders
Legal Issues
- 1 Whether the tenancy between the parties is a controlled tenancy under Cap 301.
- 2 Whether the landlord complied with the statutory requirements for terminating a controlled tenancy.
- 3 Whether the interim orders restraining eviction should be set aside.
Ratio Decidendi
The Tribunal found that the tenancy between the parties was a controlled tenancy within the meaning of Cap 301 due to the presence of a termination clause in the lease. The expiry of the lease did not alter the controlled nature of the tenancy, and the landlord was required to serve a statutory notice in the prescribed form to terminate the tenancy. The applicant's non-disclosure of the expired lease was not material, as the legal position remained unchanged. The landlord's application to set aside the interim orders was therefore without merit, as the statutory procedure for termination had not been followed.
Court Disposition
landlord's application dismissed
Orders
- The landlord's application dated 18th March 2019 is dismissed.
- Costs of the application shall abide the outcome of the tenant's application dated 11th March 2019.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
TRIBUNAL CASE NO 25 OF 2019 (THIKA)
JOSEPH WAMBURU TUMBU...........................................................APPLICANT
VERSUS
FATUMA HASSAN AWATH...................................LANDLORD/1ST RESPONDENT
ABDI NASSER ALI MOHAMED..........................LANDLORD/2ND RESPONDENT
ABUDULKADIR ALI..............................................LANDLORD/3RD RESPONDENT
MOHAMMED KHADHAR....................................LANDLORD/4TH RESPONDENT
MARE INVESTMENT ENTERPRISES................LANDLORD/5TH RESPONDENT
RULING:
Tenant/Applicant who was then acting in person filed a reference under section 12(4) of Cap 301 and a notice of motion under a certificate of urgency seeking to restrain the Landlord and/or his agents from evicting him from shop number 1 in the suit premises.
The Tribunal upon hearing the Tenant/Applicant and upon perusal of all the pleadings issued interim orders on 12th March 2019.
The Landlord/Respondent on 21st March 2019 filed an application under a certificate of urgency seeking to discharge and/or set aside the order of the Tribunal issued on 12th March 2019.
It is the Landlord’s application which is the subject matter of this ruling.
The advocates of the parties have filed written submissions on the application. The Tribunal has read in details all the submissions of the advocates of the parties and finds the issues before the Tribunal simple to resolve.
The following facts are not in dispute;
1. There is an admission by the parties that the dispute before the Tribunal is only in respect of shop number 1 situated on CR 4953/743.
2. That the Landlord Ali Mohammed (Kabati) deceased and the Tenant/Applicant entered into a lease agreement dated 14th September 2013 in respect of shop Number 1 for a period of 5 years and 3 months with effect from 1st December 2013 at the monthly rate of shs 80,000/-.
3. That the lease expired on 1st March 2019.
4. That the lease entered between the parties has a termination clause for reasons other than breach of the terms of the lease clause 2 “either party hereto may at any time determine the said term provided that such party has given at least six months calendar days prior notice in writing to the other of the intention of such party to do so.” This clause reduced the tenancy between the parties to a controlled tenancy within the meaning of section 2(i) b (ii) of Cap 301.
5. The Tribunal being satisfied that the tenancy was controlled, the same could only have been terminated by mutual consent of the parties or by the Landlord serving the Tenant with a notice in the prescribed form under section 4(2) of Cap 301.
6. The Tenant in the application dated 11th March 2019 did not disclose the existence of the lease but the Tribunal is satisfied that the non-disclosure of the lease which had expired did not adversely affect the Landlord and would not have changed the position of the Tribunal as the expired lease created a controlled tenancy. The Landlord has no option but to comply with section 4(2) of Cap 301. If he seeks to terminate the tenancy in respect of shop No. 1.
7. The other shops occupied by the Tenant are not the subject matter of the dispute and the evidence in respect of the same is not relevant.
In the light of the above findings, the Tribunal is satisfied that the Landlord’s application dated 18th March 2019 has no merits.
The Tribunal makes the following orders:
1. The Landlord’s application dated 18th March 2019 is hereby dismissed.
2. Costs of the application shall abide the outcome of the Tenant’s application dated 11th March 2019.
3. The Tenant’s application dated 11th March 2019shall be fixed for hearing at the registry on priority basis.
4. The interim orders issued on 12th March 2019shall remain in force pending the hearing and determine of the Tenant’s application dated 11th March 2019.
Ruling dated and delivered this 27th day of May 2020in the presence of Kabugu for the Landlord/Respondent. Advocate for the Tenant absent.
MBICHI MBOROKI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL