[2025] KEBPRT 269 (KLR)

Maranga v Clean Signet International Limited (Tribunal Case E145 of 2025) [2025] KEBPRT 269 (KLR) (9 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 269 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E145 of 2025

CN Mugambi, Chair

May 9, 2025

Between

Tom Maranga

Applicant

and

Clean Signet International Limited

Respondent

Ruling

Introduction 1. The Tenant’s Application dated 6. 02. 2024 seeks the following orders;-a.An order of injunction restraining the Landlord from in any manner interfering with the Tenant’s business premises, shop II situated at Suswa Plaza along Ngong Road in Ngong Town.b.That the Tenant be allowed to pay his rent through the Tribunal.c.That the notice to terminate tenancy dated 10. 2.2024 does not comply with the provisions of Cap 301 of the Laws of Kenya.d.That the OCS, Ngong Police Station do enforce the orders sought.e.Costs.

The Tenant’s depositions 2. The Tenant’s affidavit in support of his Application may be summarized as follows;-a.That when the Tenant took up tenancy of the suit premises, the Landlord agreed that the front side of the shop would remain vacant to allow for customer parking.b.That the Tenant executed a one-year lease, from 25. 01. 2024 to 25. 01. 2025 at an agreed monthly rent of Kshs. 27,000/=. A copy of the lease agreement was not given to the Tenant.c.That upon taking possession on 01. 01. 2024, the Tenant undertook renovations of the suit premises and set up a dry cleaning business at a great cost.d.That on 2. 08. 2024, the Landlord issued the Tenant with a notice to vacate the suit premises but later withdrew the said notice.e.That the Landlord has issued the Tenant with another notice dated 10th Tuesday (sic) 2024 which the Tenant received towards the end of December 2024. f.That the Landlord has failed to bill the Tenant for the rent of February 2025. g.That there was a time the Tenant paid rent of Kshs. 20,000/= instead of Kshs. 27,000/= due to lack of electricity and water in the month of April and March 2024. h.That the Tenant is not in any rent arrears.i.That the Tenant’s business has been denied parking space since the parking for the rental units has been moved infront of his shop.

The Landlord’s depositions 3. The Landlord’s replying affidavit may be summarized as follows;-a.That the lease agreement between the Landlord and the Tenant dated 1. 01. 2024 has expired and there does not exist any Landlord/Tenant relationship between the parties any longer.b.That the Tenant has not paid the rent for the months of February and March 2025 and the Landlord therefore has a valid reason to terminate the tenancy under Section 7(1)(b) of Cap 301 of the Laws of Kenya.c.That a joint inspection of the premises was carried out before the Tenant took possession of the premises and no renovations were required.d.That in the month of February (2024), the Tenant did not pay Kshs. 6,520/= and has not paid the same to date.e.That in the months of February, March and April, the Tenant refused to remit payment for the water bill.f.That the Tenant has erected a wooden structure in the suit premises without the permission of the Landlord and has interfered with the operation of the other Tenants.g.That the Tenant deflates tyres of any persons who park outside the public parking space outside his shop.h.That the Landlord has issued the Tenant with a termination notice dated 10. 12. 2024 which was effective 10. 2.2025. i.That the Tenant has breached the terms of his tenancy by installing an extra water meter in the premises without the consent of the Landlord despite the existence of a functioning water meter.j.That the Tenant has never responded to the Landlord’s notice to terminate tenancy.k.That the suit premises has an open parking space making it business friendly and accessible.l.That the Landlord’s notice to terminate tenancy dated 10. 12. 2024 is legal and valid.m.That the Tenant has irregularly disposed of dirty water yet he has a good challenge system running from his shop to the sewer line.

The Tenant’s Supplementary Affidavit 4. The Tenant has deponed in his Supplementary affidavit that the landlord last invoiced him for rent in the months of January 2025.

5. The Tenant has also deponed that the rent for the months of February and March 2025 has been paid.

6. The Tenant further depones that he paid his rent less Kshs. 6,520/= because the caretaker of the suit premises disconnected the rent due to power failure for a period of five days.

7. That the caretaker of the premises allowed the Tenant to erect the wooden structure which does not obstruct any of the Tenants of the Landlord in the premises.

8. That the Tenant’s meter does not tamper with the Landlord’s meter.

Analysis and determination 9. The issues that arise for determination in this Application are in my view the following;-a.Whether the tenancy agreement between the parties has expired and if so, whether there exists a Landlord/Tenant relationship between the parties.b.Whether the notice to terminate tenancy dated 10. 12. 2024 was valid.c.Whether the Tenant is entitled to the orders sought in his Application.

Issue A: Whether the tenancy agreement between the parties has expired and if so, whether there exists a Landlord/Tenant relationship between the parties. 10. The tenancy agreement between the parties has been exhibited by the Landlord as exhibit RK1 in the Landlord’s replying affidavit. I have perused the said agreement and I do note;a.That the demised premises was Shop No. II.b.That the agreed rent per month was Kshs. 27,000/=.c.A late payment penalty of Kshs. 500/= was imposed by the agreement.d.That a joint inspection was to be completed promptly upon following initial occupancy or upon delivery of any possession.e.At clause 13, the agreement declared itself the entire agreement between the parties and that the agreement could only be modified in writing signed by both parties.

11. The agreement does not provide for any term. I do not find a basis upon which the Landlord alleges at paragraph 7 of the replying affidavit that the lease was to run for a period of one year from 01. 01. 2024. Whereas the lease is executed on 01. 01. 2024, it does not state for what period it was to run. Under the provisions of Clause 13 of the lease agreement, any modification of the lease agreement was to be done in writing and signed by both parties. No further agreement has been signed between the parties providing for the term of the lease.

12. It is my view that a tenancy agreement which is in writing but does not contain or provide for the duration of the lease may be viewed in the same way a lease agreement which has not been reduced into writing may be viewed and interpreted. It amounts to a controlled tenancy and in the circumstances, I do find that the tenancy between the Landlord and the Tenant herein is a controlled tenancy and the Tribunal has the jurisdiction to hear and determine this matter.

13. I do not agree with the Landlord that the tenancy between the parties has expired. A tenancy agreement that has no clear provision as to its term cannot be said to expire save the parties seek to terminate the same under the provisions relating to termination of tenancies in Cap 301 of the Laws of Kenya. The tenancy having not expired, it is therefore my finding further that there exists the relationship of a Landlord and Tenant between the parties to this dispute.

Issue B: Whether the notice to terminate tenancy dated 10. 12. 2024 was valid. 14. The Landlord has at paragraph 20 of the replying affidavit deponed that he served the Tenant with a notice to terminate tenancy dated 10. 12. 2024 and to which the Tenant has never responded. I have perused the notice to terminate tenancy and although it is dated 10. Tuesday 2024, I have also seen that, it has been stamped 10. 12. 2024 by Clean Signet International Limited. It is also true that 10. 12. 2024 fell on a Tuesday and I will therefore treat the date of the notice to be 10. 12. 2024. The notice is however defective to the extent that it seeks to terminate the tenancy in the middle of the month i.e. 10. 2.2025. A notice issued/dated 10. 12. 2024 can only be effective on 1. 03. 2025. This would be in conformity with the two months’ notice provided for under Section 4(4) of Cap 301. I do not think the provision for a two months’ period is to be equated to sixty days, two months means two calendar months even where some months like February have less than thirty days. It is my view therefore that the notice to terminate tenancy issued by the Landlord is defective.

15. But, even if I was wrong on the above conclusion, it would still be problematic to enforce the Landlord’s notice to terminate tenancy in proceedings instituted by a Tenant under Section 12(4) of the Act (Cap 301). The Landlord would have to undertake separate proceedings to enforce the notice. I say so because parties have a right to Appeal in decisions arising from termination of tenancy proceedings while no right of Appeal exists in matters brought under Section 12(4) of Cap 301. In this regard, Section 15(1) of Cap 301 provides as follows;-“Any party to a Reference aggrieved by any determination or order of a Tribunal made therein may within thirty days after the date of such determination or order appeal to the Environment & Land Court.”Under Section 2 of Cap 301, a Reference means a Reference to a Tribunal under Section 6 of this Act (Cap 301). In Misc. Application No. 67 of 2012, Republic vs BPRT & Another Ex-parte, the Davies Motor Corporate Ltd, the court stated;“…In addition, the Tribunal may investigate any complaint made by a landlord or tenant. A clear distinction is made throughout the Act between a “Reference” and a “Complaint.” A party to a Reference has a right of Appeal to the High Court against any determination or order made therein but the maker of a mere complaint has no such right. The word complaint is referable only to minor matters.”

Issue C: Whether the Tenant is entitled to the orders sought in his Application. 16. I have already made findings that the tenancy between the parties herein is a controlled tenancy and I have further found that the notice issued to the Tenant is defective. The only issue that would be outstanding for determination therefore is whether the Tenant is in any rent arrears. In the supplementary affidavit filed by the Tenant, it has been deponed that the rent for the months of February and March has already been paid. I do not think in the circumstances, rent would be said to be outstanding.

17. I am in the circumstances convinced that the Tenant’s Application has merits and consequently I make the following orders;-a.That the Landlord is restrained from in any manner interfering with the Tenant’s quiet use and occupation of the suit premises pending the hearing and determination of the Reference.b.That the Tenant is to continue paying rent to the Landlord, However, in the event the Landlord declines to accept the rent, the Tenant will be at liberty to deposit the same with the Tribunal.c.That the notice of termination of tenancy dated 10. 12. 2024 is declared defective and of no consequence.d.That the OCS, Ngong Police Station shall assist with the enforcement of these orders.e.That the Landlord shall bear the costs of the Application.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF MAY, 2025. HON. CYPRIAN MUGAMBI - CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of;Mr. Mwaura for the LandlordMr. Mokaya for the TenantCourt: Hearing of the Reference on 26. 6.2025