[2022] KEBPRT 764 (KLR)

Kamau v Gichangi & 2 others (Tribunal Case E779 of 2021) [2022] KEBPRT 764 (KLR) (30 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 764 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E779 of 2021

Andrew Muma, Vice Chair

September 30, 2022

Between

Joseph Gacheche Kamau

Applicant

and

Margery Gichangi

1st Respondent

Flora Gichangi

2nd Respondent

Jemimah Gichangi

3rd Respondent

Ruling

tARGUMENTS Parties and Representatives 1. The applicant is the tenant and rented the suit premises situated in Shop 5, LR 1112/73 in Embu Municipality. (“hereinafter known as the “tenant”).

2. The firm of Kinyua Muriithi & Co Advocates represent the tenant /applicant in this matter. kinyua_muriithi@yahoo.com

3. The respondent is the landlord and rented out the suit premises to the tenant for the business (hereinafter known as the ‘landlord’’)info@onyangoaywaadvocates.co.ke

4. The firm of Onyango & Aywa Advocates represent the Respondent/Landlord in this matter.

The Dispute background 5. The landlord issued the tenant with a notice to terminate tenancy dated October 22, 2021. The notice was to take effect on January 1, 2022. The landlord provided that they were seeking to terminate on the grounds that the tenant had defaulted on payment of rent.

6. In opposition to the notice, the tenant filed a reference dated December 14, 2021 providing that they did not intend to comply with the notice issued by the landlord.

7. The landlord moved this tribunal by way of a reference dated February 15, 2022 and a notice of motion application under certificate of urgency under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act cap 301 dated February 9, 2022. The landlord was seeking amongst other orders that pending the hearing and determination of the application that the tribunal grants orders striking out valid and enforceable and require the tenant to grant vacant possession of the premises as well as pay any outstanding arrears.

Jurisdiction 8. The jurisdiction of this tribunal is not in dispute.

The landlord’s claim 9. The landlord filed a reference dated February 15, 2022 and a notice of motion application under certificate of urgency dated February 9, 2022 seeking to strike out the reference by the tenant as well as payment of arrears and granting of vacant possession which pleadings form the basis of this claim.

10. The tenant has filed a further affidavit dated March 29, 2022.

The tenant’s claim 11. The tenant’s has filed a replying affidavit dated March 18, 2022 averring that their reference was rightfully filed and opposing the landlord’s notice of termination.

12. Parties have filed submissions and the matter was fixed for ruling on September 30, 2022.

List of issues for determination 13. It is the contention of this tribunal that the issues raised for determination are as follows;a.Whether the termination notice issued by the landlord is valid?b.Whether the tribunal should strike out the reference filed by the tenant?

Analysis and findings Whether the termination notice issued by the landlord is valid? 14. Termination of a controlled tenancy is provided for under section 4 of the Landlord and Tenant (shops, Hotels and Catering Establishments) Act. The Section provides that;“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 provisions of this Act”

15. Section 4 (2) and (4) of cap 301 provides that;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.4(4)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.

16. In the present case, the landlord issued the tenant with a notice to terminate tenancy dated October 22, 2021 and the same was to take effect on January 1, 2022. According to the provisions of cap 301 above the said notice can be deemed to be valid as it gave the Tenant the required statutory period of two months.

17. Section 4 (5) of cap 301 provides that;4(5)A tenancy notice shall not be effective for any of the purposes of this Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration or reassessment concerned and requires the receiving party to notify the requesting party in writing, within one month after the date of receipt of the notice, whether or not he agrees to comply with the notice.

18. In relation to the validity of the reference filed by the tenant, this court having examined the said reference and compared it to the above provision, I find that the termination notice was dated October 22, 2021, the refence filed by the tenant is dated December 14, 2021. According to the above provision, the reference was filed out of time since it was not filed within one month after receipt of the notice to terminate. This tribunal also observes that the tenant did not seek leave to be allowed to file out of time nor did they seek for an extension of time. As a result, the reference contravened the provisions of section 4(5) of cap 301 above.

19. With regards to the question on rent arrears, the landlord has averred that the tenant has defaulted in paying rent and was in arrears of kshs 120,000. 00 as at October 2021. I have perused the file and found that the tenant has annexed to their replying affidavit mpesa statements evidencing that they cleared their arrears in two installments; kshs 60,000. 00 paid on November 13, 2021 and kshs 80,000. 00 paid on November 23, 2021. The tribunal also observes that the landlord acknowledges in their written submissions that the payments were indeed made albeit late.

20. Having established that the notice was valid and that the rent arrears have been cleared, I find that the tenant shall be required to grant vacant possession of the premises to the landlord.

Ordersa.The landlord’s reference dated February 15, 2022 and notice of motion application dated February 9, 2022 are hereby allowed in the following terms;b.The notice to terminate tenancy dated October 22 is hereby declared valid.c.The tenant shall vacate the premises within 30 days.d.Each party shall bear their own costs.

HON A MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon A Muma this 30th day of September, 2022 in the presence of Aywa for the Landlord and in the absence of the Tenant.HON A MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL