[2021] KEBPRT 402 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. 497 OF 2020 (NAIROBI)

MARY MUTINDA................................................................TENANT/APPLICANT

VERSUS

MASUMBUKO WOMEN GROUP..........................LANDLORD/RESPONDENT

AND

JOSLET NAMAYI

PAMELA OLESIA

MARY NAJOLI..................................................................INTERESTED PARTIES

RULING

PARTIES AND THEIR REPRESENTATIVE

1. The Tenant/Applicant, Mary Mutinda rented a kiosk situated along the Kibera Access Road off Mbagathi on Nyayo Highrise ward, Nairobi for business (hereinafter referred to as the “Tenant”)

2. Learned Counsel Maingi Kamau and Co. Advocates represent the Tenant. (karugakamau@yahoo.com)

3. The Respondent Masumbuko Women Group is the registered owner and Landlord of the suit premises rented out to the Tenant. (hereinafter referred to as the “Landlord”)

4. Learned Counsel Ondieki & Wanjiru Ng’ang’a Advocates represent the Landlord. (ownadvocates@gmail.com/ondiekim7@gmail.com)

5. The Interested parties are members of the Masumbuko Women Group the registered owner and Landlord of the suit premises rented out to the Tenant. (hereinafter referred to as the “Interested Party”)

6. Learned Counsel Namada & Co. Advocates represent the Interested Party.

(law@namadaadvocates.com)

THE DISPUTE BACKGROUND

7. On 12th May, 2020 the Tenant moved this Court under a Certificate for orders of injunction restraining the Landlord from interfering with his quiet possession and to reopen the suit premises.

8. On 14th May 2020 the Tribunal gave orders in favour of the Tenant restraining the Landlord from interfering with his quiet possession and to reopen the suit premises.

9. On 1st July 2020 the Landlord filed an application under Certificate for this Court to stay the Orders dated 12th June 2020and the dismissal of the reference filed by the Tenant.

10. On 7th July 2020, the Court gave orders for the application dated 7th July 2020to served and set a hearing date for the Application for 10th July 2020.

11. On 10th July 2020 the Court issued a Consent order enjoining the interested parties to the proceedings and gave a further hearing date of 20th August 2020.

12. The Landlord made an application on 16th July 2020 seeking the eviction of the Tenant from the suit premises, compensation for the losses incurred by the Landlord and a dismissal of the Tenant’s reference to the Tribunal

13. The Application therefore coming for ruling is the Landlord’s application dated 16th July 2020.

THE DISPUTE BACKGROUND

14. The Landlord and the Tenant entered into a tenancy agreement in 18th July 2016with regards to the suit premises at a consideration of Kshs. 15,000 per month.

15. It is the Tenant’s claim that the Landlord’s application dated 16th July 2020 is frivolous and that the same should be dismissed and that the Tenant’s application dated 12th May 2020 is merited.

16. It is the Landlord’s claim that through the Court’s order dated 12th June 2020, the Landlord has been prevented from evicting the Tenant from the suit premises, and that it has incurred losses as a result.

17. It is the Interested Parties claim that the Landlord’s application dated 16th July 2020 is not merited and that the same is an abuse of the Court’s process and should be dismissed

THE CLAIM AND DEFENCE

18. The Tenant filed an application dated 12th May, 2020 seeking orders requiring the Landlord to open up the suit premises. The applicants also sought orders that the Tribunal restrains the Landlord jointly and severally by itself and/or through its agents, servants and/or employees otherwise from interfering with the quiet possession and occupation of the suit premises by the Tenant.

19. The Tenant’s case is that the Landlord through a letter dated 18th March 2020, the Landlord issued her with notice to terminate the tenancy. This prompted the Tenant to file a reference with the Court and an application dated 12th May 2020to secure her rights as a protected Tenant.

20. The Landlord’s case is that the Tenant’s application dated 12th May 2020 were frivolous, malicious and vexatious, the proceedings conducted were unconstitutional and so were the orders dated 14th May 2020 and confirmed on 11th June 2020.

21. It is the Interested Parties case that the Tenant’s application dated 12th May 2020is merited and oppose the application dated 16th July 2020 by the Landlord.

LIST OF ISSUE FOR DETERMINATION

22. The parties raised certain issues for determination in their submissions and the tribunal shall proceed to distill the issues discussed by parties and their counsels who submitted in writing as below:

a) Whether the termination notice issued by the Landlord on 18th March 2020 is lawful?

b) Whether or not the Landlord is entitled to the orders sought?

ANALYSIS AND FINDINGS

Whether the termination notice issued by the Landlord on 18th March 2020 is lawful?

23. From the evidence adduced before this Court, it is clear that the Landlord did not comply with any of the procedures set out by the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act Cap 301.

24. The tenancy between the Landlord and the Tenant was entered through a tenancy agreement dated 18th July 2016. Section 2 of the Landlord and Tenant (shops, Hotels and Catering Establishment) Act Cap 301, provides for what a controlled tenancy entails i.e

a) which has been reduced into writing and which-

i. is for a period not exceeding five years; or

ii. contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof; or

iii.relates to premises of a class specified under subsection (2) of this section.

25. The Tenancy Agreement dated 18th July 2016, entered between the Landlord and the Tenant is a controlled tenancy as it;

a) is concerned with a space rented by the Tenant to carry out a business

b) the tenancy period is periodic as from the agreement it is renewed on the 5th day of each succeeding month when the Tenant pays the rent.

26. In the case of National Fund for The Disabled of Kenya Registered Trustee v squire Limited [2017] eKLR, the Defendant paid rent to the Plaintiff on a monthly basis by. Furthermore, the Court echoed the provisions of section 12(1) of the Act, which provides that the Tribunal has power to determine whether or not any tenancy is a controlled tenancy.

27. Having established that indeed it is a protected tenancy, we need to address the issue of its termination. Termination of a controlled tenancy is provided for under section 4 of the Landlord and Tenant (shops, Hotels and Catering Establishments) Act. The Section provides that; “Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall 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 the provisions of this Act”

28. Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act further provides that, “A landlord who wished 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 to the tenant in the prescribed form.”

29. Through a letter dated 18th May 2020, the Landlord issued the Tenant with a notice to terminate the tenancy. It is the Tenant’s contention that the said letter is not the form provided for under the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act.

30. The form discussed in Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is provided for under Form A of the Regulations. The Key components of the notice includes;

a) identification of the parties;

b) date of termination or alteration;

c) grounds on which the termination or alteration is sought;

d) requirement of the tenant either to agree or disagree with the notice; and

e) the provisions (section 4(2)) under which the notice is being given.

31. The Court would like to refer to the case of Syenda Mohammed Burhannudin Saheb v Mohamdedally Hassanally [1980] eKLR. One of the issues was the nature of the termination notice. The defendant averred that the notice was null and void in law firstly because of the double-barrelled nature of the notice and secondly because the notice was served out of jurisdiction of the court.

32. The learned Judge in the above case relied on Section 72of the Interpretation General Provisions Act Cap 2which provides: “Save as is otherwise expressly provided, whenever any form is prescribed by any written law, an instrument or document which purports to be in such form shall not be void by reason of any deviation therefrom which does not affect the substance of such instrument or document, or which is not calculated to mislead.”

33. The substance of the notice issued by the Landlord is clear, the effect of which is to terminate the tenancy. However, the notice does deviate from the form prescribed under the Landlord and Tenant (Shops, Hotels and Catering Establishment s) Act in that;

a) It does not disclose the legal provision under which the notice is being given;

b) It does not provide the timeline of one month in which the tenant is allowed to challenge the notice; and

c) the identity of the proprietor of the suit premises is a matter which is still before the Milimani Chief Magistrate Court in CMC 570 of 2019. Hence it is not clear under who’s instructions the Landlord was issuing the Termination Notice.

34. From the above, I find the notice issued by the Landlord to be void as the deviation of the said notice affected the substance of the instrument and it is also misleading as the in battle within the Masumbuko Women Group has led to the splitting of the group both claiming to be the proprietors of the suit premises, a matter which is still before the Chiefs Magistrates court.

Whether or not the Landlord is entitled to the orders sought?

35. On 12th June 2020 this court made orders restraining and/or prohibiting the Landlord, his authorized servants and/or agents from harassing, evicting, intimidating and/or in any other manner whatsoever interfering with the Tenant’s quiet possession and occupation of the suit premises.

36. The orders sought by the Landlord in the application dated 16th July 2021are equitable remedies and I am guided by the decision in Kyangaro v. Kenya Commercial Bank ltd & another [2004] 1KLR126as cited in Patrick Waweru Mwangi & Another v Housing Finance Co. of Kenya Ltd [2013] eKLRat page 145 where the Court stated;

“Secondly, the injunction sought is an equitable remedy. He that comes to equity must come with clean hands and must also do equity. The conduct of the Plaintiff in this case betrays him. It does not endear him to equitable remedies. He who comes to equity must fulfil all or substantially all his outstanding obligations before insisting on his rights. The Plaintiff has not done that. Consequently, he has not done equity.”

27. Furthermore, as to the injunctive orders sought by the Landlord this Court is guided by the principles in Giella vs Cassman Brown and Co. Ltdwhere the Court set out the principles for interlocutory injunctions.

“The conditions for the grant of an interlocutory are now, I think well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not be normally granted unless the applicant might otherwise suffer irreparable injury in which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

28. I find that the Landlord is trying to have a second bite at the cherry. Civil Suit No 570 of 2019 speaks to this dispute and the determination of the same will end this wild goose chase. It is clear from the ruling emanating from the Commercial Court dated 22nd November 2019 that almost similar prayers for injunctive reliefs were made by the Landlord in their Notice of Motion Application dated 17th September 2019 and dismissed pending full hearing of the suit and determination of who the real landlord is, before this determination is made the status quo remains. It is incumbent upon the landlord to fix this suit for hearing as stated in the said ruling which I have had opportunity to look at and proof their case. Before then this tribunal had pronounced itself on this issue on 11th of June 2020 and the said orders shall continue in force.

29. There is a Swahili saying that ‘Fahali wawili wakipigana nyasi ndio huumia,’ It is not in the jurisdiction of this court to make a finding as to who the landlord is but it is the duty of this tribunal to ensure the tenant continues to enjoy quite possession of the suit premises.

ORDERS

For the reasons given above I ORDER as follows that:

a) The landlord’s application dated 16th July 2021 is dismissed with costs to the Tenant and interested parties.

b) The Orders of 11th June 2020 to continue being in force.

c) The upshot is that the Tenant reference dated 12th May 2020 is spent and therefore compromised on similar terms as in b above in light of CMCC 570 of 2019.

d) However, parties are free to set it down for hearing in 30 days for what it’s worth failure to which this suit stands marked as settled.

e) Landlord to pay Tenants cost awarded at Kshs.20,000/- and IP parties costs also assessed at Kshs 20,000/-

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. MAY THIS 23RD DAY OF JULY 2021 in the absence of the parties.

HON P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL