[2022] KEBPRT 74 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 78 OF 2021 (NAKURU)

LEAH WANJIRU MUNENE..............................LANDLADY/APPLICANT

VERSUS

RIMS SUPPLIES CO. LTD..................................TENANT/RESPONDENT

RULING

1. The Landlady’s/Applicant’s application dated 9th July 2021 seeks the following orders;

a. Spent.

b. That there be an order to strike out the reference dated 21st June 2021.

c. That there be an order of eviction against the Respondent/Tenant.

d. That there be an order for settling water bills against the Tenant/Respondent.

e. Costs.

2. The application is supported by the affidavit of Leah Wanjiru Munene which I summarize as follows;

a. That there is no existing tenancy between the Tenant and the Landlord the same having lapsed on 14th March 2021.

b. That on 3rd May 2021, the Applicant issued to the Tenant/Respondent a notice to terminate tenancy, the same was to take effect on 3rd July 2021.

c. That the Landlord intends to occupy the suit premises for the purposes of carrying out a business for a period of more than one year.

d. That the Tenant owes the Applicant/Landlord water bills amounting to Kshs 37,200/-.

e. That the Tenant has encroached the backyard and parking area making it difficult for the Landlord to construct a sewerage system and a water storage tank.

3. The application is opposed. The Respondent has sworn a replying affidavit by Ms Jemimah Wairimu Waihenya and which I summarize as follows;

a. That she entered into a lease agreement in her personal capacity with one Catherine Watiri over the suit premises but the tenancy never materialized.

b. That the Respondent herein entered into an oral agreement and moved into the premises on 14th March 2016.

c. That the Respondent has dutifully paid its rent and owes no rent arrears.

d. That on 30th April 2021, the Applicant issued an unlawful notice to terminate the tenancy.

e. That the said unlawful notice was issued to the Respondent/Tenant after it refused to forfeit Kshs 300,000/- paid as goodwill.

f. That the said notice is defective, null and void and therefore of no legal consequence.

g. That the Respondent/Tenant has opposed the said notice by filing the present reference in exercise of its rights under Cap 301.

h. That the Tenant does not owe any water bills.

i. That the Applicant has maliciously disconnected water supply to the Tenants hardware in an attempt to force the Tenant out of the suit premises.

j. That the backyard and parking area are integral spaces for the Tenant’s business as they were let together with the hardware shop.

k. That there does not exist an application dated 21st June 2021 only the reference challenging the notice to terminate the tenancy is on record.

l. That the Applicant has declined to accept a bankers cheque in the sum of Kshs 240,000/- being the rent for August, September and October 2021.

m. That the application herein is premature.

4. The only issue for determination in this application is whether the Applicant is entitled to the prayers sought in his application.

5. The Landlady’s notice to terminate tenancy is the one dated 3rd May 2021. It is addressed to Rims Suppliers Co. Ltd the Respondent herein. Upon receipt of the notice, the Respondent filed a reference under section 6 of Cap 301. The reference is the one dated 21st June 2021. It is this reference that the Applicant seeks to strike out amongst other orders in her application.

6. Notices to terminate tenancy are provided for under section 4 of Cap 301 under section 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”.

7. Under section 6(1) Cap 30;

“A receiving party who wishes to oppose a tenancy notice and who has notified the requesting party under section 4(5) of this Act that he does not agree to comply with the tenancy notice, may before the date upon which such notice is to take effect, refer the matter to a Tribunal whereupon such notice shall be of no effect until and subject to the determination of the reference by the Tribunal.”

8. Under section 9 (1) of Cap 301, it is provided;

a. Upon a reference a Tribunal may after such inquiry as may be required by or under this Act or as it deems necessary;

i. Approve the terms of the tenancy notice concerned, either in its entirety or subject to such amendment, or alteration as the Tribunal thinks just having regard to all the circumstances of the case or;

ii. Order that the tenancy notice shall be of no effect;

iii. And in either case make such further or other orders as it thinks appropriate.

9. It is clear from the above provisions of Cap 301 that once the Tenant received the notice of termination of its tenancy, it had a right to object to the same by way of filing a reference which it did. Upon the filing of the reference, it is the duty of the Tribunal to hear the same and make any of the orders detailed under section 9(1)(a) and (c) of the Act (Cap 301.

10. I do not think the reasons given by the Applicant for the striking out of the reference have any grounding in law. The Tenant has a right to be heard in its objection to the notice of termination of its tenancy and I am in agreement with the Tenant that the Landlord’s/Applicant’s application dated 9th July 2021 is premature. The orders sought in the said application can only be dealt with during the hearing of the reference.

11. In the circumstances, I do find that the application dated 9th July 2021 lacks merit and the same is dismissed with costs to the Tenant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA (VICE CHAIR) THIS 28TH DAY OF JANUARY, 2022 IN THE ABSENCE OF THE PARTIES.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL