[2022] KEBPRT 817 (KLR)

Mativo v Nyeri Plot Owners Limited & another (Tribunal Case 52 'B' of 2018) [2022] KEBPRT 817 (KLR) (11 October 2022) (Judgment)

Neutral citation: [2022] KEBPRT 817 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 52 'B' of 2018

Andrew Muma, Vice Chair

October 11, 2022

Between

Jamleck Giteri Mativo

Applicant

and

Nyeri Plot Owners Limited

1st Respondent

Hoskim Commercial Agencies

2nd Respondent

Judgment

A. Parties and Representatives 1. The applicant Jamleck Gitari Matiro is the tenant of a rented business space, Shop Number 1 G situate in Plot Number Nyeri/Municipality Block 3/40. (hereinafter known as the Tenant)

2. The firm of M/S Gori, Ombongi and Company represents the tenant/ applicant.

3. The 1st respondentis the Landlord and owner of the rented business space. (hereinafter known as the Landlord). The 2nd respondent is an agent of the 1st Respondent.

4. The firm of M/S Kimunya and Company Advocates represent the respondents.

B. The Dispute Background 5. In a reference to the tribunal dated 5th June 2018 and an application of even date, the tenant approached this tribunal to protest a notice of vacation/eviction through a letter dated 25th May 2018.

6. In the letter, the Landlord contends that it entered into a lease agreement with one Joseph Muya Munyiri on March 18, 2018and the said Joseph Muya now deceased and the applicant’s occupation was illegal and amounted to trespass. The 1st respondent was now issuing a notice to vacate within 14 days.

C. Jurisdiction 7. The jurisdiction of this tribunal is not in dispute.

D. The Tenant’s Claim 8. The Tenant states that the 1st respondent is wrongfully evicting him from his place of work, despite being a valid rent paying tenant for over 20 years.

9. He contends that he was a partner of one Joseph Munyiri Muya, now deceased, and as result of his partner’s death, he has been running his business on his own and has been diligently paying rent to the respondents who have been receiving the rent and issuing receipts in the deceased’s name.

10. He contends that around 2017, the 1st respondent without any provocation started issuing verbal threats to him to vacate the premises. Thereafter, on May 25, 2018, the 1st respondent sent a letter to the Tenant and he responded to the same on June 6, 2018. He states that the threat of eviction prompted him to file a reference to this tribunal making a number of prayers:i.The respondents be restrained and prohibited from interfering with the applicant’s quiet possession.ii.The 1st respondent be ordered to formalize their tenancy relationship with the applicant by issuing him with a Tenancy Agreement.iii.The respondents be restrained from arbitrarily increasing monthly rent.iv.The respondents be ordered to continue receiving rent and issue the applicant with the receipts.

E. The Landlord’s Claim 11. The Landlord claims that the applicant is not its Tenant since a Tenancy Agreement they had entered with the applicant’s deceased partner had since expired and also now that the said Joseph Muya Munyiri had died, they did not recognize the applicant as their Tenant because according to them, the Tenancy was extinguished by Muya’s death. Hence the Tenant’s occupation of the business premises is illegal.

F. List of Issues for Determination 12. The issues raised for determination before this Tribunal are as follows;i.Whether the applicant is a Tenant of the respondent.ii.Whether the notice of termination/vacation was legal.

G. Analysis and Findings i. Whether the applicant is a tenant of the respondent. 13. The Landlord contends that the applicant was not its tenant on the basis that it had entered into a Tenancy Agreement with the applicant herein.

14. To determine this vital question I make reference to the provisions of section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act which spells out the jurisdiction of this Tribunal.

15. Section 12(1)(a) provides that one of the powers the tribunal exercises is to determine whether or any tenancy is a controlled tenancy.

16. A controlled tenancy has been defined in section 2 of the Act as a tenancy of a shop, hotel or catering establishment which has not been reduced into writing; or which has been reduced into writing and which is for a period not exceeding five years; or contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof.

17. The Landlord states that he was in a Tenancy relationship with Mr Joseph Muya Munyiri, now deceased and had even signed a Tenancy Agreement with him. He however contends that after Mr Muya passed on, it has never gotten into any tenancy agreement with the Applicant herein.

18. That notwithstanding, the Landlord continued receiving rent from the Applicant and even issued receipts; although in Mr Muya’s name. It can only suffice that a tenancy relationship can be inferred from those acts.

19. As stated earlier, a controlled tenancy need not be in writing but can be inferred from the acts of the tenant paying rent and the Landlord receiving it as such.

20. This tribunal therefore makes a finding that indeed a Landlord-Tenant existed between the applicant and the Landlord herein. The fact that receipts were issued in the name of the deceased Tenant does not vitiate the existence of a relationship governed by this act.

ii. Whether the Notice of Termination/ Vacation was legal. 21. Having established that there existed a Landlord Tenant relationship between the applicant and the 1st respondent, this Tribunal shall move on to analyse the second issue of termination of the Tenant.

22. Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act provides for the legalities to be followed when terminating a controlled tenancy or when altering the terms of a controlled tenancy. The provisions on the issue of notice are clear that if a landlord intends to terminate a controlled tenancy, he should do so in accordance with the provisions of the Act.

23. Section 4(2) of the Act provides that:“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.”

24. Section 4(4) is also to the effect that the Notice can only take effect after two months of receipt by the receiving party and the notice must also specify the grounds upon which the requesting party seeks alteration of the terms. The receiving party on his part has to notify the requesting party after the date of receipt of the notice whether or not he agrees to comply with the notice.

25. The Grounds for termination of a tenant are set out in section 7 of the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act.

26. From the notice of vacation vide a letter dated May 25, 2018, both the notice period and the reasons for termination given by the Landlord are not within the ambit of the law.

H. Orders 27. Having made the analysis above. This tribunal makes the following orders:i.That the notice of vacation/ termination issued on May 25, 2018was illegal and defective.ii.That the reference to the tribunal dated June 5, 2018is merited.iii.That costs to issue to the applicant/ Tenant.

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 11TH DAY OF OCTOBER,2022 IN THE ABSENCE OF PARTIESHON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL