[2025] KEBPRT 301 (KLR)

Middle Town Forex Bureau Limited v Ecobank Limited (Tribunal Case E897 of 2024) [2025] KEBPRT 301 (KLR) (23 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 301 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E897 of 2024

N Wahome, Chair & Joyce Murigi, Member

May 23, 2025

Between

Middle Town Forex Bureau Limited

Tenant

and

Ecobank Limited

Landlord

Ruling

1. This Ruling pertains the Tenant/Applicants Notice of motion application dated 19/8/2024. The same is brought under Section 12 (4) of the Landlord and Tenant (shops, Hotels and Catering Establishments) Act (Cap. 301) which we herein after refer to as “the Act”.

2. In the application, the Tenant sought for the following orders:-a.That this Honourable court be pleased to issue injunctive orders against the Landlord, his Agents, Servants under his instructions threatening to increase rent on Tenant’s parcel No 209/900 Standard Street from 130,069 to Kshs 250,000/- per month.b.That the costs of this application be provided for.

3. The Application was filed on the reference of the even date which complained that:-“The landlord has unlawfully increased rent from Kshs 130,069 to Kshs 250,000/- contrary to the provisions of Cap. 301 of the Laws of Kenya. I pray this court to intervene and I be given the necessary orders plus costs of the case”.

4. The Tenant eventually filed the submissions dated 11/4/2025 and in them, it heavily questioned the validity of the notice to increase rent by the letter dated 30/7/2024. To the Tenant, that was not a notice known to the law and same was in breach of Section 4(2) of the Act. It sought that its Application dated 19/8/2024 be allowed with costs.

5. On their part, the Respondents filed their Replying Affidavit sworn by John Wambugu on the 14/3/2025. The Respondents have also filed the written submissions dated 22/4/2025. They readily admit non- compliance with the mandatory provisions of the law and in particular Section 4 (2) of the Act in issuing the impugned notice dated 30/7/2024.

6. The Respondents however contend that the impugned notice have all the required ingredients under section 4(2) of the Act and they seem to suggest that this court should therefore invoke the provisions of Section 72 of the Interpretationand General Clauses Act (Cap 2) and validate the impugned notice dated 30/7/2024.

7. We have perused the parties respective pleadings and evidence and also the submissions and are of the view that this matter turns on the issue of the validity of the impugned notice dated 30/7/2024. We are also of the view that a resolution on the issue will also largely resolve the reference dated 19/8/2024. We are also called upon to decide on the question on who is to bear the costs of these proceedings.

8. The guiding law on the issue at hand is Section 4(2) of the Act.The same 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”.

9. The law is very particular on this issue and actually unequivocal on the requirement of strict compliance with the same. It has therefore generated regulations to guide compliance. Regulations 4(1) of the Regulations to the Act provides that:-“A notice under Section 4(2) of the Act by a Landlord shall be in Form A in the schedule to these Regulations”.

10. In our view, the Act herein is a special purpose legislation. It was enacted to particularly secure interests of hopeless tenants from unreasonable landlords and it therefore calls for strict compliance thereof. We doubt that Section 72 of Cap. 2 may come into the aid of an action taken without strict compliance with Cap. 301 as in this case.

11. Justice Okongo in the celebrated case of Fredrick Mutua Mulinge T/A Kitui Uniform v Kitui Teachers Housing Co-operative Society Ltd (2017) eKLR in emphasizing the need for strict and complete compliance with the Act held that:-“It is clear from the foregoing authorities that the Tenancy notice dated 28/6/2014 was null and void for failing to give the appellant two months notice as required under the Act and as such was of no legal effect. Life could not be breathed into the defective notice by the letter dated 1/7/2014 through which the Respondent purported to amend the effective date of the notice. The letter was not a notice in the prescribed form provided for under the Act”.

12. We do not therefore have any hesitation to declare the impugned notice dated 30/7/2024 as unlawful and as a consequence allow the notice of motion application dated 19/8/2024. We shall also resolve the reference of the same date in the same terms as the application herein.

13. On the question of costs, we have noticed the Tenant’s admission that the rent payable on the demised premises should be Kshs 167,000/-. It is only paying Kshs 130,069/- per month. Though the successful party, it would not be justicious to award it costs in view of the savings being made monthly on payment of rent. We shall therefore direct that each party bears own costs.

14. To meet the ends of justice in this matter, we do exercise our discretion under Section 9(3) of the Act and shall allow the landlord to issue a proper tenancy notice immediately or at its convenience.

15. In the final analysis, the orders that commend to us are the following,-i.That the reference and notice of motion application both dated 19/8/2024 are allowed in terms that the tenancy notice dated 30/7/2024 is declared unlawful and without any legal effect.ii.That the Landlord is granted exception under the proviso to Section 9 (3) of Cap 301 and is at liberty to issue a fresh and proper tenancy notice either immediately or at its convenience.iii.That each party shall bear own costs of these proceedings.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF MAY, 2025. HON. NDEGWA WAHOME, MBS, - PANEL CHAIRPERSONHON. JOYCE MURIGI, - MEMBERBUSINESS PREMISES RENT TRIBUNAL. BPRT.Ruling delivered in the presence of Counsel for the Landlady/Applicant and in the absence of Tenant/Respondent.