[2024] KEBPRT 58 (KLR)

Machua v Muiruri (Tribunal Case E097 of 2023) [2024] KEBPRT 58 (KLR) (26 January 2024) (Judgment)

Neutral citation: [2024] KEBPRT 58 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E097 of 2023

J Osodo, Chair & Gakuhi Chege, Member

January 26, 2024

Between

Mary Wanjiku Machua

Tenant

and

Mary Seleina Muiruri

LandLady

Judgment

A. Dispute Background. 1. The applicant herein moved this tribunal vide a reference under Section 6 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 dated 27th January, 2023 wherein she opposes the notice to terminate tenancy issued by the landlord dated 8th November, 2022 which was expressed to take effect on 1st February, 2023.

2. The tenant/applicant filed a Replying affidavit in support of the reference which is dated 31st January, 2023 wherein she deposes as follows; -i.That she is a tenant in the suit premises occupying 2 shops paying a monthly rent of Ksh. 22,000 and Ksh. 20,000 respectively which she cumulatively pays to the landlord/respondent herein.ii.That at times she pays the rent to the landlord directly and in some instances, she pays through the landlord’s advocates.

3. At a court hearing on 30th March, 2023, in the absence of the landlord, the court ordered that parties file and exchange compliance documents in terms of Order 11 of the Civil Procedure Rules.

4. The landlord filed grounds of opposition dated 7th July, 2023 in which she states as follows; -i.That the application is an abuse of the process of this honorable court and the same ought to be dismissed with costs.ii.That the applicant has since the year 2020 been filing one application after another protesting the landlord’s notices to vacate.iii.That the application is meant to frustrate and force the landlord/respondent to extend the lease period which lapsed in 2019. iv.That the application is meant to compete with the notice issued by the County Government of Kajiado.

5. The landlord filed a replying affidavit dated 7th July, 2023 to oppose the application herein in which the landlord/respondent deposes as follows; -i.That the tenant and the landlord’s late husband entered into a tenancy agreement dated 6th November, 2017 and the said tenancy was to be renewed after 2 years while reviewing the rent payable. A copy of the said agreement is annexed as “MSM 1”.ii.That in 2019, the respondent’s late husband increased the rent payable because the tenant had constructed temporary structures which she had sublet to other 3rd parties contrary to the terms of the agreement.iii.That the tenant refused to comply and thus the landlord’s late husband issued a notice to terminate/alter the terms of tenancy dated 26th October, 2020, which was opposed vide a reference by the tenant. The said reference was determined on 7th October, 2022 wherein the court ordered that the structures erected by the 3rd parties be demolished.iv.That although the Notice issued by the respondent’s late husband dated 26th October, 2020 was dismissed for non-compliance with the law, the respondent herein issued another notice to vacate the property dated 8th November, 2022 in accordance with the law.v.That the reason why the landlord/respondent herein did not wish to renew the said tenancy agreement is because the property needs to be renovated as stated in the notice of termination dated 8th November, 2022 to vacate the premises.vi.That further, the respondent was duty bound to renovate the premises in accordance with the Public Health standards as per the directives by the Kajiado County’s Department of Health Services due to the poor state of the premises. The statutory notice is annexed as “MSM 2”.vii.That the renovations not only require the tenant herein to vacate the premises, but also all other tenants within the property. That notice to stop occupation was served upon all other tenants dated 22nd February, 2023 is annexed as “MSM 3a, 3b and 3c” respectively.viii.That despite the new notice to terminate tenancy issued to the applicant, the applicant has refused to vacate the premises and instead opted to file this application 60 days after the issuance of the notice.ix.That this tribunal has previously heard and determined the issues raised in this application through the applicant’s previous and similar application dated 25th October, 2022 in BPRT/E964/2022 wherein the tenant was contesting the period of the notice issued to her.

6. The tenant/applicant filed their witness statement, list of witnesses and list of documents all dated 29th August, 2023.

7. At a court hearing on 12th October, 2023, the counsel for the tenant stated that they were unable to proceed because the tenant was unwell and thus the court ordered that the reference proceeds by way of written submissions, and both parties complied. The tenant filed theirs dated 4th January, 2024 and the landlord filed theirs dated 17th January, 2024. We shall consider all the documents filed herein while dealing with the issues for determination.

B. Issues for determination 8. The following are the issues for determination; -a.Whether the termination notice dated 8th November, 2022 is lawful and valid.b.Who shall bear the costs of the application?

Issue (a) Whether the termination notice dated 8th November, 2022 is valid 9. The landlord’s notice to terminate tenancy dated 8th November, 2022 issued to the tenant herein indicated that the notice is due on 1st February, 2023 and states that the reasons for termination are; -I.That the lease agreement dated 6th November, 2017 had expired and the landlady does not wish to renew the said lease.II.That the family wishes to renovate the premises as the deceased had intended.

10. In regard to the question of validity of the notice, we wish to rely on the case of Manaver N Alibhai t/a Diani Boutique – vs- South Coast Fitness & Sports Centre Limited Civil Appeal No. 203 of 1994 where it was held as follows: -“The Act lays down clearly 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 grounds 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.”

11. In the instant case, the Notice served by the landlord is in the prescribed form in accordance with Cap 301 laws of Kenya.

12. The tenant opposes the Notice to terminate tenancy on the grounds that the tenancy agreement between the parties did not have an expiry date as stated by the landlord in the notice to terminate tenancy.

13. A cursory look at the tenancy agreement dated 6th November, 2017 reveals that the agreement does not bear any term period but contains a rent escalation clause of 2 years. The agreement states as follows; -“As from now 06/11/2017 we have agreed on a new rent rate which will stand at Ksh. 19,000 per month. We shall be negotiating on a new rent rate after every 2 years from now 06/11/2017 to 06/11/2019”

14. The other ground for termination stated in the notice to terminate tenancy herein is that the landlord intends to renovate the suit premises as the deceased had intended.

15. The landlord in his submissions dated 17th January, 2024 has referred to Section 7 (1) (f) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 which states; -“(f)that on the termination of the tenancy the landlord intends to demolish or reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises;”

16. The landlord has attached a statutory notice from Kajiado County Department of Health Services dated 6th February 2023 which is annexed as “MSM 2” which requires the landlord to do some renovations including replacing all worn out iron sheets and provision of adequate lighting and ventilation for the premises.

17. The tenant in her submissions and witness statement filed, avers that the said notice from Kajiado County was contested at NEMA's office where the landlady was requested to table all the approval documents which she failed to produce and the officer from NEMA advised that the matter be put to rest. The landlord herein has not disputed these claims in her submissions.

18. Additionally, the tenant avers in her submissions dated 4th January, 2024 that the premises do not require extensive repairs to warrant the eviction and we note that the landlord/respondent has failed to show evidence of renovations that the suit premises requires that will warrant the eviction.

19. The landlord/respondent has failed to prove the grounds for termination listed in the Notice to terminate tenancy and we find that the said notice has not been proved on a balance of probabilities as required in civil cases.

Issue (b) Who shall bear the costs? 20. As regards costs, the same are in the Tribunal’s discretion under Section 12(1)(k) of Cap. 301, but always follow the event unless for good reasons otherwise ordered. The landlord respondent has failed to prove the grounds for termination of tenancy; therefore, we shall award costs to the tenant/applicant.

C. Orders 21. In the upshot, the following orders commend to us; -a.The tenant’s reference dated 27th January, 2023 is allowed and the tenant is allowed to continue with her peaceful occupation of the suit premises.b.The landlord’s Notice to terminate tenancy dated 8th November, 2022 is declared invalid.c.Costs of Ksh. 20,000 to the tenant to be offset against rent.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 26TH DAY OF JANUARY 2024. HON. JOYCE AKINYI OSODO - (PANEL CHAIRPERSON) BUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGE- (MEMBER)In the presence of:Karanja h/b for Ms. Nduta for the LandlordMs. Oketch for the Tenant