[2022] KEBPRT 813 (KLR)

Kiringa v Muli & another (Tribunal Case E534 of 2022) [2022] KEBPRT 813 (KLR) (Civ) (31 October 2022) (Ruling)

Neutral citation: [2022] KEBPRT 813 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E534 of 2022

Gakuhi Chege, Vice Chair

October 31, 2022

Between

Faith Igoki Kiringa

Applicant

and

Joseph Muli

1st Respondent

Mary Anne Njoki

2nd Respondent

Ruling

1. The tenant moved this tribunal seeking for restraining orders against the landlord on account of a notice marked ‘F1K1’ described as “eviction notice” in which the landlord required here to quit and deliver up the premises from January 1, 2022. The notice was given on account of the tenant being a nuisance to other tenants and infringement of their peace.

2. The suit premises is described as ‘Wafrida shop” situate on Ruiru, Hilton, Gitambaya estate plot no 1390. The tenant pays monthly rent of Kshs 7500/-.

3. The tenant contends that being a controlled tenant, the landlord is obliged to follow the provisions of the Landlord and Tenant (Shops, Hotels and catering Establishments) Act before varying or altering any terms of the said tenancy.

4. According to the tenant, the landlord issued her with letters and notices purporting to terminate her tenancy in a manner that is contrary to section 4(4) of the aforesaid Act. She therefore moved to this tribunal to seek protection from unlawful eviction. She contends that the income drawn from the shop supports her and two children and she resides at the back thereof. As such, any eviction would occasion her irreparable damage as she has been paying rent to the landlord.

5. The application is opposed through the landlord’s replying affidavit sworn on July 5, 2022 wherein it is deposed that the entire building is dilapidated and in need of repair. He spoke to the tenants to yield up possession to enable repairs.

6. When the other tenants yielded possession for repairs, the applicant is accused of becoming abusive and a complete nuisance to them forcing the landlord to issue a notice to terminate her tenancy. She committed to vacate by end of June and rent for April, May and June was to be forfeited in terms of annexure ‘JM1’. As a result, the tenant did not pay rent for the said months and is accused of coming to this court with unclean hands. As such the application before court is ill conceived, malafides and calculated to frustrate the landlord’s efforts to repair the house as per annexure ‘JM2’.

7. Among the prayers sought by the tenant in her application is an order to assess the rent payable in respect of the reference.

8. The reference dated June 21, 2022 is indeed a complaint under section 12(4) to the effect that the landlord had issued an illegal notice of termination dated January 19, 2022.

9. The matter was on August 1, 2022 directed to be canvassed by way of written submissions and both parties complied. I shall consider the submissions together with the issues for determination.

10. From the pleadings, the following issues arise for determination:-a.Whether the notice of termination of tenancy issued by the landlord is valid.b.Whether the tenant is entitled to the reliefs sought herein:-c.Who is liable to pay costs?

11. Section 4(2) of cap 301, Laws of Kenya stipulates 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 shall give notice in the prescribed form.

12. I have looked at the two notices issued by the landlord herein and the same are not in the prescribed form. I therefore agree with the tenant’s submission that the said notice does not confirm with the said provisions and is to that extent invalid.

13. A tenant who is faced with threats of eviction based on an illegal notice is entitled to an order of injunction as equity will not suffer a wrong without a remedy. The contention of illegality is sufficient to move a court of equity into granting an injunction as was held by the court of appeal in the case of Alkman & Others vs Muchoki & Others(1982) eKLR at page 4/6 where it was observed as follows;-“………..the court ought never to condone or allow to continue a flouting of the law. Those who flout the law by infringing the rightful title of others and blazenly admit it, ought to be restrained by way of injunction. If I am adding a new dimension for the grant of an interlocutory injunction, be it so. Equity will not assist law breakers”.

14. Even if there was any undertaking which unfortunately I cannot find in the court file that the tenant shall move out of the suit premises as contended by the landlord and that the tenant is now reneging on it, such undertaking cannot validate the illegal notice.

15. As regards the tenant’s prayer for assessment of rent, I find that no notice has been served upon the landlord by the tenant under section 4(3) of cap 301, Laws of Kenya which provides as follows;-“(3)A tenant who wishes to obtain a reassessment of the rent of a controlled tenancy or the alteration of any term or condition in or the alteration of any term or condition in or any right or service enjoyed by him under such tenancy, shall give notice in that behalf to the landlord in the prescribed form”

16. In her filed reference, the tenant did not complain about any increment of rent and clearly state at paragraph 4 of the supporting affidavit that the rent was increased in the year 2021. Having accepted to pay the new rent without any challenge at that time, the tenant cannot turn around and seek to declare the same illegal. Equity does not assist the indolent but the vigilant. She is prevented from asserting her right now under the doctrine of estoppel.

17. I have noted the argument by the landlord that the premises are dilapidated and require repairs. Although this is not the reason given in the illegal eviction notices exhibited herein, he is required to issue a proper notice upon the tenant in order to gain possession for that purpose.

18. Although the landlord contends that the alleged undertaking entered into superseded the illegal eviction notices issued to the tenant on the basis of the decision in Magnate Ventures ltd vs Dilbag Singh Brothers (investments) Ltd (2008) eKLR, I am not persuaded that such an undertaking would eliminate the need to issue a proper notice under cap 301, Laws of Kenya.

19. Section 4(1) of the said Act provides as follows:-“(1)Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy term 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”.

20. As such, the tenant having disputed the undertaking to vacate, the same cannot by any stretch of imagination be found to have superseded the above clear provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act cap 301, Laws of Kenya.

21. As regards costs, the same are in the tribunal’s discretion under section 12(1) (k) of cap 301, laws of Kenya but always follow the event unless for good reasons otherwise ordered. I have no reasons to deny the tenant costs.

22. In conclusion, the final orders which commend to me in both the reference and application dated June 21, 2022 are:-i.The landlord is hereby prohibited and/or restrained from evicting or interfering with the tenant’s occupation and use of the business premises known as Wafrida shop situate on plot no 1390, Ruiru, Hilton Gitambaya Estate without adhering to the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, cap 301 Laws of Kenya.ii.The landlord is at liberty to issue a proper notice under the said act upon the tenant.iii.Costs of Kshs 15,000/- is awarded to the tenant to be offset against rent if not paid within 30 days hereof.It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 31ST DAY OF OCTOBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of:Waithira Mwangi for the RespondentsNyongesa for the Tenant