[2024] KEBPRT 123 (KLR)

Kingori v Maritim (Tribunal Case E092 of 2023) [2024] KEBPRT 123 (KLR) (2 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 123 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E092 of 2023

M Makori, Member

February 2, 2024

Between

Daniel Maina Kingori

Applicant

and

Jenniffer Njoki Maritim

Respondent

Ruling

1. The present claim was filed vide an application dated 25th August 2023 supported by the supporting affidavit of Daniel Maina Kingori.

2. In response the Landlady filed a Replying affidavit dated 9th September 2023 denying the claims made and making claims of an existing rent arrears.

3. The landlady then proceeded to file an application dated 20th of September 2023 and a relying affidavit in opposition of the claims was filed by the tenant on the 18th of October 2023.

4. The landlady and the tenant then filed submissions dated 29th September 2023 and 26th October 2023. From the totality of the pleadings filed by parties and submissions several issues arises for determination.

5. In addressing this issue, I shall consider two aspects: the formal requirements of a notice for termination of a tenancy agreement and the Landlady’s grounds for termination of the tenancy.

6. The applicant/tenant has in his application dated 25th of August 2023 at paragraph 3 of his supporting affidavit claimed that he has been making payments to the respondent since the commencement of the tenancy. He proceeded to attach a tenancy agreement dated 5th of December 2021. On this there is an admission of a tenancy relationship between him and the landlady.

7. However, under his supporting affidavit he makes claim that through his private investigator that the property rented to him is a road reserve however no evidence of such report or evidence has been filed before this tribunal to ascertain the claims.

8. In the tenant’s further affidavit dated 23rd Of September 2023 and in his replying affidavit dated 18th of October 2023 in response to the landlady’s application dated 20th September 2023 the tenant changes tune to the ownership and avers that he bought the property from the Landlord/respondent. The tenant has proceeded to attach an agreement to assert his claim.

9. It is clear from the above deduction of facts that there is a claimed dispute in ownership, however this tribunal acknowledges that it lacks the inherent jurisdiction to determine the legal ownership of property in a dispute.

10. However, by his own admission the tenant one Daniel Maina Kingori made payment of rent on the said property from the year 2021 based on a lease agreement he himself attached. The said status is also affirmed by the landlord/respondent therefore confirming that indeed there exists a landlady-Tenant relationship.

11. On issues of payment the tenant has made claim of payment of rent up to date and further in his replying affidavit claims to have made excess payment to the purchase of the property and seeks refund of the same however no proof of payment of rent as alleged has been brought to this tribunal. On the payment of the purchase of the property as aptly discussed above the tribunal restrains from surpassing its jurisdiction.

12. On the other hand, the landlord has attached statements of claim of rent that is outstanding as at the month of September 2023, a tenancy agreement between Tylers property agents and the tenant and an agreement for past due rent payment dated 30/7/2022.

13. Having found that no proof nor sufficient denial of the fact on the arrears has been attached or claimed the tribunal is inclined to find that the claims on the arrears is merited

14. The tenant has also made claim that there is continuous harassment and threat of eviction from the landlord based on a notice of termination that is not contemplated in law. This tribunal makes its analysis as follows.

15. For formal requirements of notice of termination of a tenancy I am guided by section 4(2) of the Landlady and Tenant (Shops, Hotels and Catering Establishments) ActCap 301 Laws of Kenya (hereinafter referred to as the “Act”) provides that; -“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.”

16. Additionally, section 4(4) provides that no tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party, unless the terms and conditions of the tenancy provide for a period exceeding two months or the parties to the tenancy agree in writing to a lesser period of notice.

17. The two requirements therefore for a valid notice of termination of the tenancy is first, that the notice shall be in the prescribed form and secondly, that the notice shall not take effect until after expiry of two months, or such notice period as may be agreed by the parties. This was emphasized in the case of Munaver N Alibhai T/A Diani Boutique v South Coast Fitness & Sports Centre Limited [1995] eKLR, where the Court of Appeal at Mombasa in finding that the notice of termination of the tenancy was void for failing to comply with Section 4 of theAct stated as follows;“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of theActstates 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 grounds on 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. Additionally, according to section 4(2) mentioned above, the notice of termination of tenancy should be the prescribed form, specifically Form A, as provided for in the Landlady and Tenant (Shops, Hotels and Catering Establishments) (Tribunal) (Forms and Procedure) Regulations, 1966.

19. The Landlady’s notice of termination of the tenancy was not in Form A prescribed by the Act but rather in form of a letter from an advocate. The same is admitted in the landlady’s replying affidavit. Further there is no assertion by the landlady of any other form of notice issued to the Tenant/Applicant.

20. The notice of termination of the tenancy therefore does not meet the requirements of the Act with regard to being in a prescribed form.

21. In the upshot and based on the foregoing the Tribunal finds that the reference by the Tenant is partially merited and makes the following orders;a.The Tenant’s Application and reference dated 25th August 2023 is hereby partially allowed.b.The tenant shall pay the arrears of the tenancy being Kenya shillings One hundred and forty thousand (140,000) as at September 2023 and Kenya shillings One hundred and twenty thousand (120,000) being rent arrears for the month of October, November, and December 2023 within a period of 45 days.c.The reference succeeds on grounds of defective notice.d.The OCS Kiganjo Police Station to enforce compliance with this order.e.Each party shall bear their own costs.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY OF FEBRUARY 2024. HON. MIKE MAKORI - MEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of;Mr. Karanja for the TenantMs. Maheli for the landlord