[2024] KEBPRT 92 (KLR)

Mbugua v Mugo (Tribunal Case E243 of 2023) [2024] KEBPRT 92 (KLR) (Civ) (2 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 92 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E243 of 2023

J Osodo, Chair & Gakuhi Chege, Member

February 2, 2024

Between

Margret Mbugua

Tenant

and

Wilson Mugo

Landlord

Ruling

A. Dispute background 1. The tenant moved this tribunal vide a reference under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301, dated 26th September, 2023 wherein the applicant complains that the landlord has issued a verbal notice to increase rent from Ksh. 10,000 to Ksh. 36,000 and that the respondent has threatened to evict the tenant from the suit premises if she fails to comply.

2. The applicant/tenant filed a Notice of Motion under a certificate of urgency dated 26th September, 2023 in which she sought for the following orders; -i.That this application be certified as urgent.ii.That the tribunal orders and declares that the verbal notice issued by the landlord/respondent increasing rent from Ksh. 10,000 to Ksh. 36,000 be declared illegal.iii.That pending hearing inter-partes, the tribunal be pleased to issue a temporary injunction restraining the landlord/respondent from evicting the tenant/applicant and/or terminating the lease agreement or in any other manner whatsoever interfering with the tenant’s peaceful occupation of the premises.iv.That pending hearing and determination of the suit, the tribunal to order restraining the respondent/landlord and/or his agents from evicting/harassing or in any way interfering with the applicant’s quiet enjoyment of the tenancy.v.That the orders be enforced by the OCS Nyali Police Station.vi.That the costs of the reference be borne by the respondent/landlord.

3. The application is supported by an affidavit of even date in which the applicant/tenant deposes as follows; -i.That the tenant has been operating a gym business in the premises owned by the landlord since 2010 to date.ii.That the tenant has been paying rent of Ksh. 10,000 per month without fail and for the moment, no rent is owing.iii.That the landlord has issued the tenant with a verbal notice to increase rent from Ksh.10,000 to Ksh. 36,000 and has threatened to evict the tenant from the suit premises if she fails to comply.iv.That the business the tenant operates at the suit premises is her only source of income and unless restrained by an order of this court, she will suffer great loss and damages.

4. On 3rd October, 2023, the court issued interim orders of injunction against the landlord respondent pending hearing inter-partes of this application.

5. The application is opposed vide a replying affidavit dated 6th November, 2023 in which the landlord respondent deposes as follows; -i.That on 26th July, 2023, the landlord instructed his advocates on record to issue a Notice of alteration of tenancy to the applicant/tenant, increasing her rent from Ksh. 10,000 to Ksh. 30,000, the prevailing market rent of the area. A copy of the said notice is annexed as "WM-1".ii.That the applicant/tenant was properly served with the said notice dated 26th July 2023 vide WhatsApp and she acknowledged receipt of the same.iii.That the allegations that the tenant was verbally served with the notice of alteration of tenancy are untrue.iv.That the tenant filed this application 4 days to the due date of the said notice which shows that she has been aware of the notice.v.That the affidavit of one James Gikundi Murungi process server clearly shows the mode of service and the tenant’s response to the said service.

6. At a court hearing on 8th November, 2023, the court ordered that the application be disposed of by way of written submissions and both parties complied. The tenant filed theirs dated 24th November, 2023 and the landlord/respondent filed theirs dated 11th December, 2023. We shall consider both submissions as we deal with the issues for determination.

B. Issues for determination 7. The following are the issues for determination; -a.Whether the Notice of Alteration of tenancy dated 26th July, 2023 is valid.b.Whether the tenant/applicant is entitled to the orders sought in the application dated 26th September, 2023. c.Who shall bear the costs of the application?

Issue (a) Whether the Notice of alteration of tenancy dated 26th July, 2023 is valid. 8. The landlord /respondent in his replying affidavit dated 6th November, 2023 deposes that the tenant herein was served with a Notice of Alteration of tenancy dated 26th July, 2023 vide WhatsApp message.

9. The tenant/applicant on the other hand has sworn in her supporting affidavit that the landlord/respondent issued her a verbal notice instead which she submits to be contrary to the law.

10. Upon perusal of the court documents, we have found the landlord’s Notice to alter terms of tenancy dated 26th July, 2023 which is in the prescribed form according to Section 4 (2) of the Landlord and Tenant (Shops, Hotel and Catering Establishment) Cap 301 laws of Kenya, has indeed been filed and annexed by the landlord herein as “WM-1”. Along with this, is an affidavit of service by one James Gikundi Murungi dated 27th July, 2023 where the process server avers that upon service via WhatsApp, the tenant/applicant acknowledged receipt of the same. Annexed as “JG-1” is indeed a screenshot confirming the said service.

11. The landlord/respondent, in his submissions has referred the court to the case of Syedna Mohamed Burhannudin Saheb v Mohamedally Hassanally [1980] eKLR wherein the court stated as follows; -“In any case where the Notice is couched with a ground for termination of tenancy and on the alternative ground of alteration of term or condition of the tenancy and the tenant does not notify the Landlord his willingness to comply with the Notice or to refer the matter to the Tribunal, then the Notice: “Shall have effect from the date therein specified to terminate the tenancy, or to terminate or alter the terms and conditions thereof or the rights or services enjoyed thereunder.”

12. This court is guided by the above decision and shall also rely on Manaver N Alibhai t/a Diani Boutique v South Coast Fitness & Sports Centre Limited Civil Appeal No. 203 of 1994 where it was held as follows: -“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 ground 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.”

13. The landlord/respondent’s notice to alter terms of tenancy dated 26th July, 2023 has been duly proved to have been properly served upon the tenant herein who failed to file any reference in opposition to the rent increment in line with Section 6 (1) of Cap 301, Laws of Kenya as a result of which the same took effect in terms of Section 10 of Cap. 301, Laws of Kenya and the tenant’s tenancy stood altered on the effective date.

Issue (b) Whether the tenant/applicant is entitled to the orders sought in the application dated 26th September, 2023. 14. The tenant/applicant has come to this tribunal seeking orders of injunction against the landlord/respondent based on the claims that the landlord herein had issued a verbal notice to increase the rent from Ksh. 10,000 to Ksh. 35,000.

15. With regard to the threshold for granting injunction orders, this tribunal is guided by the locus classicus case of Giella v Cassman Brown and Co Ltd [1973] EA 358 at 360 which set out the principles to include: whether the applicant has shown prima facie case with a probability of success; whether the applicant shall suffer irreparable injury which cannot be compensated by damages; and if the court is in doubt, then it can decide the application on a balance of convenience.

16. We have already determined from the analysis above that the Notice to Alter terms of tenancy is valid and the tenant/applicant has failed to prove her case, therefore this tribunal has no other option but to deny the tenant/applicant the orders sought in her application herein.

Issue (c). Who shall bear the costs of the application? 17. 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. We shall award costs to the respondent/landlord.

C. Orders 18. In conclusion, the following final orders commend to us; -a.The landlord’s/respondent’s notice to alter the terms of tenancy dated 26th July, 2023 expressed to take effect on 1st October, 2023 is hereby approved and the tenant’s rent is increased to ksh. 35,000/= as proposed therein.b.The tenant’s application dated 26th September, 2023 is hereby dismissed with costs to landlord assessed at Ksh. 20,000/=.c.Interim orders are hereby dischargedIt is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 2ND FEBRUARY 2024HON. JOYCE AKINYI OSODO - PANEL CHAIRPERSON BUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGE - PANEL MEMBERIn the presence of:Ngumbao holding brief for Mr. Ataka for the landlordTenant present in person