[2024] KEBPRT 184 (KLR)

Muchangi v Karingi (Tribunal Case E056 of 2023) [2024] KEBPRT 184 (KLR) (18 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 184 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E056 of 2023

N Wahome, Member

January 18, 2024

Between

Jacob Muchangi

Tenant

and

Lincoln Kivuti Karingi

Landlord

Ruling

1. This ruling is on the notice of motion application by the Applicant/Tenant dated 20. 10. 2023. With it, is a reference of even date with similar grievances and seeking similar reliefs to those in the application.In effect, this ruling on the application will effectively compromise the reference in its entirety.

2. The Reference which was said to be founded on Section 12(4) of the Landlord and Tenant (Shops, Hotels & Catering Establishments) act, Cap 301 (hereinafter referred to as “The Act”) complained of;“That the landlord has issued an illegal termination notice which was only served on Friday 28. 10. 2023 and demands I vacate the premises on 31. 10. 2023. He has also added an extra padlock in the premises to bar my access. My goods are locked inside and I am now suffering economic loss.”

3. In the application dated 30. 10. 2023, the Tenant sought for the following prayers:-i.spentii.That the Respondent be barred from evicting or interfering with tenant’s tenancy comprised in stall No. 53 downstairs at Embu 3rd Bus Park pending the hearing and determination of the complaint herein.iii.That the landlord/Respondent be ordered to open the premises stall No. 53B downstairs at Embu 3rd Bus Park pending hearing and determination.iv.That the OCSEmbu police station to ensure the adamant landlord complies with order 3 and 4 above.v.That costs of this application be borne by the landlord/Respondent.

4. The landlord/Respondent filed his response by the replying affidavit sworn on the 15. 11. 2023. Both parties consented to relying on their filed pleadings as the court retired to consider this matter by this ruling.

5. The case for the tenant in brief was that:-i.The landlord has issued him with an illegal notice terminating his tenancy by a letter dated 1. 9.2023 and which was only delivered to him on the 28. 10. 2023. That he had also been issued with another illegal notice dated 17. 9.2023. ii.He had paid all the rents due on the demised premises and the landlord had no ground to terminate the tenancy.iii.The landlord had without authority of this court denied him access into the demised premises.iv.He therefore sought to have the termination notices declared unlawful and that the landlord be restrained from interfering with his quiet use and occupation of the demised premises.v.He also sought for costs.

6. On his part, the landlord denied that he had an oral agreement with the Tenant but a written one dated 1. 9.2019 which was to run for a period of six (6) years. He produced the same as “LKK1”.

7. He stated that the Tenant was a serial rent defaulter and that by invoking the provisions of clause 4 of the said agreement, he had issued him with the relevant notices and which had been served on him through whattsapp and his last known postal address. He produced the purported notices as LLK 2, 3 and 4.

8. The landlord stated that their relationship with the Tenant was governed by the lease agreement dated 1. 9.2019 and that the Tribunal was bound to respect the same. He therefore sought for endorsement of his termination notices and for the Tenant to allow him vacant possession. The landlord enclosed LKK-5 which is a new lease agreement with one Wincate Njoki Kangi dated 1. 11. 2023 on the demised premises. He therefore sought that this new lease be given effect.

9. Having considered all the materials before me, I am of the view that the only issues for determination are the following:-a:Whether the landlord’s termination notices dated 1. 9.2023 and 19. 9.2023 are lawful.b:Whether the Tenant’s case is merited.c:Who should bear the costs of this suit.

Issue No. a: Whether the landlord’s termination notices dated 1. 9.2023 and 19. 9.2023 are lawful 10. The landlord has emphasized on the need to have exclusive consideration on the agreement between him and the Applicant dated 1. 9.2019. I would be in agreement with that assertion save that clause 5 of the said agreement provides that:-“If either party shall desire to terminate the terms hereby created, shall give to the other party one month’s notice in writing of such desire, then immediately on expiration of such notice, the present tenancy shall cease without prejudice to the rights and remedies of either party against the other in respect of any antecedent or covenant.”

11. By that inclusion in the lease agreement, the relationship between the Applicant and the landlord became controlled and governable under the Act. Section 2(1) of the Actdefines one of the ingredients of a controlled tenancy as;-“Contains provisions for termination otherwise than for breach of covenant, within five (5) years from the commencement thereof.”

12. It followed then that, any party intending to terminate or alter any term of this tenancy had to strictly comply with this Act. Section 4(2) thereof 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.”

13. Regulation 4(1) of theRegulationsto the Act provides that:-“A notice under Section 4(2) of the Act by a tenant shall be in Form A in the schedule to these Regulations.”From the foregoing, it is clear that the purported termination notices were not in compliance with the Act for lack of form, never observed the required timelines and indeed never gave any grounds for the purported termination.

14. Section 4(4) of the Act provides that:-“No tenancy notice shall take effect until such date, not being less than two (2) months after the receipt thereof by the receiving party as shall be specified therein.”

15. Section 7(1) of theActprovides that;-“Where under Section 4 of this Act served a notice of termination of a controlled tenancy on the tenant, the grounds on which the landlord seeks to terminate such tenancy may be such of the following grounds as are stated in the aforesaid notice.”

16. Having perused the notices dated 1. 9.2023 and 19. 9.2023, I have no hesitation to hold that the same do not pass the test of the notice prescribed under Section 4(2) of the Act and Regulation 4(1) thereof. This provisions are mandatory and any notice that contravenes the same is defective, invalid and unlawful.

17. The court in the case of; Narshidas & Company Ltd vs Nyali Air Conditioning & Refrigeration Services Limited Civil Appeal No. 205 of 1995, the court on the prerequisites of a valid notice held that;-“The landlord and Tenant’s (Shops, Hotels & Catering Establishments) ActCap 301 Laws of Kenya lays down clearly and in detail, the procedure for the termination of a controlled tenancy. 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 and the notice must also specify the grounds 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… The notice to quit given or issued by the Defendant was clearly void and had no effect in law on the plaintiff’s tenancy and the plaintiff was under no duty, legal or otherwise to react to it.”

18. That said, it is very clear and plain that the landlord’s purported notices dated 1. 9.2023 and 19. 9.2023 were a nullity in law and of no effect nor consequence to the Applicant’s tenancy.

Issue No. b: Whether the Tenant’s case is merited 19. By my findings above, it is obvious that the Tenant’s grievances have found acceptance by the law as established. The purported notices to vacate the demised premises, the locking up of the same and the attempted hand over to a third party were all actions in breach of the law.

20. Indeed, the purported lease agreement between the landlord and Wincate Njoki Kangi was entered into on the same date of the orders of this court and which leaves much to be desired. But it is my view that when a court order comes into conflict with an agreement, such as the present one, the court orders take precedent.

21. I therefore find that the Tenant’s case is merited and would allow the same, in terms of the application dated 30. 10. 2023 and the reference of the same date.

Issue No. c: Who should bear the costs of this suit 22. Costs follow the event. The landlord’s actions were in clear breach of the law and therefore the Tenant is deserving of costs from him. I therefore award costs to the Tenant.

23. In the final analysis, the orders that commend themselves to me are the following;-a.That the landlord’s notices of termination dated 1. 9.2023 and 19. 9.2023 are declared illegal ab-initio null and void andd of no effect nor consequence.b.That the Applicant is a tenant within the demised premises known as Stall No. 53B Downstairs at Embu County 3rd Bus Park with all the rights as enshrined underCap 301 of the Laws of Kenya.c.The Tenant shall pay rent as it falls due and the landlord has a right to levy distress in the event of ascertainable rent arrears.d.The landlord shall pay to the Tenant costs assessed at Kshs. 20,000/= to be offset from the rent payable to him.Those are the orders of the court.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 18TH DAY OF JANUARY 2024. HON. NDEGWA WAHOME, MBSMEMBERBUSINESS PREMISES RENT TRIBUNALRuling delivered in the absence of the parties.The court to notify the parties accordingly.