[2022] KEBPRT 211 (KLR)

Kutayi v Shah (Tribunal Case 313 of 2021) [2022] KEBPRT 211 (KLR) (Civ) (15 July 2022) (Judgment)

Neutral citation: [2022] KEBPRT 211 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 313 of 2021

P May, Vice Chair

July 15, 2022

Between

Ebrahim Kutayi t/a Afriza shoe Makers

Tenant

and

Ramesh Chandra Nathoo Shah

Landlord

Judgment

1. The present proceedings were commenced by the tenant vide the reference dated April 9, 2021. The filing of the reference was I opposition to the notice of termination of tenancy/alteration of conditions which had been served upon the tenant on February 3, 2021. The reference was brought under section 6 of cap 301.

2. The tenant challenged the validity of the notice issued stating that it did not fall within the requirements given for a statutory notice under cap 301. It was wanting in form.

3. The parties appeared before me for the hearing of the reference on November 24, 2021and March 16, 2022respectively. Each of the parties called a single witness to testify in their favour. The parties were directed to file submissions in support of their respective positions. There has been compliance by both parties.

Tenant’s case: 4. The tenant stated that he had been occupying the demised premises from 1991. He further stated that he had sub tenants who equally occupied the demised premises. It is his averment that the landlord issued him with a notice to terminate the tenancy on two grounds namely; destroying the premises and that he had sublet the premises.

5. The tenant in his testimony informed the Tribunal that he had sub let the premises with the permission of the landlord. That, it was therefore untrue that he had not sought prior consent before he sublet the premises. It was his testimony further that the landlord was hellbent on having him evicted as he had served a similar letter in 2007.

6. The tenant also challenged the photos produced by the landlord stating that the same were not taken at the demised premises thus should be disregarded.

7. The tenant in his submissions addressed the two grounds that the landlord had raised in issuing the notice to terminate the tenancy.

8. On the first ground of failing to keep the demised premises in tenantable state the tenant disputed the veracity of the photos produced by the landlord urging the Tribunal that they were not taken at the demised premises.

9. The tenant proceeded to submit on the second ground of subletting without the landlord’s consent. He stated that he had sublet the premises for over 25 years without the landlord raising any issue. He also urged the Tribunal to take notice that the landlord had failed to serve the sub tenants with a notice as prescribed under the law and invited the Tribunal to allow the reference.

Landlord’s case: 10. The landlord’s case can be summarized as follows.

11. The tenant took possession of the demised premises and had occupied the premises for a period close to over 30 years. The landlord stated that the premises were in dilapidated state which had been caused by the tenant. Further that the tenant had sublet the premises without seeking prior consent.

12. In his submissions, the landlord has made reference to the various provisions of cap 301 and case law in urging the Tribunal to dismiss the reference. The landlord has insisted that the tenant was required by law to seek prior consent before embarking on the process of subletting the demised premises.

ANALSYIS: 13. The sole issue for determination as framed by the parties is whether the notice to terminate the tenancy was valid. I am guided by Clause 4(ii) and (iv) and section 4(2) of the of the Landlord and Tenant (shops, Hotels and Catering Establishment) Act.

14. The question then would be whether the letter dated February 3, 2021 constitutes a Notice of termination of Tenancy contemplated under section 4 of cap 301.

15. Section 4(2) cap 301 is in the following terms“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(underlining mine).

16. Under section 4(5) of the said Act,“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 or re-assessment 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 (underlining mine).

17. The prescribed form referred to under section 4(2) of cap 301 is FORM A1 in the schedule. I do find that the Landlord’s letter dated 3/2/2021 does not amount to the prescribed form of Notice provided for under section 4(2) of cap 301.

18. I further find that the said Notice/Letter goes afoul of the provisions of section 4(5) of cap 301 to the extent that it does not require of the tenant to notify the landlord whether or not he intends to comply with the demand in the notice within one month of the receipt of the said notice.

19. In answer to this issue. I therefore do find that no valid notice to terminate the Tenancy was issued by the Landlord to the Tenant/Applicant.

20. This position of the law on the issue of a termination notice is now settled as can be seen in the cases which are cited below. In the case of Manaver N Alibhai t/a Diani Boutique v South Coast Fitness & Sports Centre Limited, Civil Appeal No 203 of 1994, the court stated that:-“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states 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 ground upon 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.”

21. Further in Lall v Jeypee Investments Ltd Nairobi HCCA No 120 of 1971 (1972) EA 512 the court stated as follows:-“The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is an especially enacted piece of legislation which creates a privileged class of tenants for the purpose of affording them the protection specified by its provisions against ravages of predatory landlords. Such protection can only be fully enjoyed if the provisions of Act are observed to the letter otherwise the clearly indicated intention of the legislature would be defeated. In order to be effective in this fashion the Act must be construed strictly no matter how harsh the result... The Landlord and Tenant Act laid down a code which Parliament intended to be followed and if a landlord does not give notice of termination as prescribed, the notice will be ineffectual. This may seem a technical and unmeritorious defence, but there is no doubt that the court has no power to dispense with these time limits if the defendant chooses to object at the proper time. This is an Act which requires, insofar as the giving of the notice is concerned, absolute and complete not merely substantive compliance with its peremptory provisions.”

22. Having found that the notice to terminate the tenancy herein was illegal and having further found that the Landlord did not issue the notice to terminate as required under the law, I make the following orders,a.I allow the reference dated April 9, 2021. b.Each party shall meet their contractual obligations as when they fall due.c.Costs to the tenantIt is so ordered.

RULING SIGNED, DATED AND DELIVERED THIS 15TH DAY OF JULY 2022. HON. P. MAYVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Gisemba for the LandlordNo appearance for the Tenant