[2020] KEBPRT 61 (KLR)
The Tribunal found that the tenancy between the parties was a controlled tenancy under section 2 of Cap 301. The landlord's notice dated 10th December 2018 did not comply with section 4(2) of Cap 301, rendering it incurably defective, null, and void. As such, the landlord could not lawfully terminate the tenancy or...
Source-derived case information.
- Citation
- [2020] KEBPRT 61 (KLR)
- Parties
- Applicant: Martha Wairimu Ng’ethe; Respondent: Geoffrey Kimani Njenga
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 242 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- application allowed
- Legal Topics
- Controlled Tenancy, Termination of Tenancy, Eviction Procedure, Statutory Notices
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martha Wairimu Ng’ethe
Applicant
Geoffrey Kimani Njenga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the landlord's notice to terminate the tenancy complied with section 4(2) of Cap 301.
- 2 Whether the landlord is entitled to evict the tenant based on the notice dated 10th December 2018.
- 3 Whether the tenant is entitled to injunctive relief restraining eviction.
Ratio Decidendi
The Tribunal found that the tenancy between the parties was a controlled tenancy under section 2 of Cap 301. The landlord's notice dated 10th December 2018 did not comply with section 4(2) of Cap 301, rendering it incurably defective, null, and void. As such, the landlord could not lawfully terminate the tenancy or evict the tenant based on that notice. The Tribunal agreed with the tenant's submissions and authorities that compliance with the statutory procedure is mandatory. The application by the tenant was therefore merited and allowed, with the landlord restrained from evicting the tenant or interfering with her occupation of the premises. Costs were awarded to the tenant, to be...
Court Disposition
application allowed
Orders
- The landlord is prohibited and restrained from effecting termination notice and unlawfully evicting the tenant from shop A on plot Number LR 209/12953 or otherwise interfering with the tenant’s use and occupation of the said premises.
- The landlord shall pay the tenant costs of the reference and the application dated 14th March 2019 assessed at KES 50,000 all inclusive.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
TRIBUNAL CASE NO 242 OF 2019 (NAIROBI)
MARTHA WAIRIMU NG’ETHE…………………………………...........TENANT
VERSUS
GEOFFREY KIMANI NJENGA…..………………………………….LANDLORD
RULING
The Tenant/Applicant on 12th March 2019 filed a reference under section 12(4) of Cap 301and also an originating summons seeking to restrain the Landlord from evicting the Applicant/Tenant from the suit premises.
The Tribunal has perused all the pleadings in the matter and the written submissions of the advocates of the parties and the written authorities relied on by both advocates of the parties.
The Tribunal does not find it difficult to resolve the issues raised by the Tenant for the following reasons;
1. It is admitted that the Landlord and the Tenant in this reference entered into a lease agreement dated 3rd January 2014 for a period of 5 years.
2. The Landlord’s notice dated 10th December 2018 does not comply with section 4(2) of Cap 301.
It is clear from the tenancy agreement that the tenancy between the parties is a controlled tenancy within the meaning of section 2 of Cap 301 and the tenancy can only be terminated in accordance with the provisions of section 4(2) of Cap 301.
The Tribunal is in total agreement with the Tenant’s advocate’s submissions and the authorities which he has cited that the Landlord has no option but to comply with the provisions of section 4(2) of Cap 301 if he wishes to terminate the Applicant’s/Tenant’s tenancy. The Tribunal has no doubt in its mind that the Landlord’s notice dated 10th December 2018 is incurably defective, null and void and is incapable of being enforced.
The Tenant/Applicant’s application dated 14th March 2019 has merits and the same is hereby allowed and the Tribunal makes the following orders;
1. The application dated 14th March 2019 is allowed in terms of prayers 3 of the notice of motion, that is to say;
a. The Landlord/Respondent is prohibited and restrained from effecting termination notice and unlawfully evicting the Tenant from shop A on plot Number LR 209/12953 or otherwise interfering with the Tenant’s use and occupation of the said premises.
2. The Landlord/Respondent shall pay the Tenant/Applicant costs of the reference and the application dated 14th March 2019 assessed at shs 50,000/- all inclusive.
3. The Tenant shall deduct the costs from the rent due to the Landlord/Respondent.
4. The Landlord is at liberty to serve the Tenant with a notice which complies with section 4(2) of Cap 301.
Rulingdated and delivered this 27th day of May 2020 in the presence of Miss Njeruholding brief forMrs Charagofor theLandlord’s advocatefor theTenantabsent.
MBICHI MBOROKI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL