[2024] KEBPRT 307 (KLR)

Muriithi v Kimani (Tribunal Case E1304 of 2023) [2024] KEBPRT 307 (KLR) (29 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 307 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1304 of 2023

N Wahome, Member

February 29, 2024

Between

Lucy Njeri Muriithi

Applicant

and

John Kimani

Respondent

Ruling

1. The Landlord/Respondent issued the Tenant/Applicant with what was titled “Eviction Notice letter “ which was undated but which was explicit in its communication.The same read as follows:-““You are hereby given 10 days notice to vacate the premises, you are required to surrender possession of the above premise to the landlord on or before 21st December of this month”.

2. It is what triggered the reference herein and dated 26/12/2023. The same was said to be founded under section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments Act) Cap. 301 which I hereafter refer to as the Act. It raised the following grievances,-“The Respondent/Landlord who has served me with insufficient and defective notice to vacate the premises within 10 days. The Respondent/Landlord had also disconnected electricity from the premises and threatened to terminate the terms of my tenancy”.

3. The tenant further complained that “No prior lawful court order was served upon me to warrant the said inhuman acts”.The reference was accompanied by a notice of motion of even date brought under certificate of urgency dated 26/12/2023. The Application sought for the following reliefs,i.Spentii.That the Honourable Tribunal be pleased to issue an order compelling the Respondent/Landlord to re-open and reinstate the Tenant/Applicant back to the suit premises forthwith.iii.That the Honourable Tribunal be pleased to grant an order restraining the Respondent/Landlord, or any other person acting on his instructions from harassing, intimidating, frustrating, disconnecting electricity and water, demolishing, locking or in any other manner interfering with her tenancy pending hearing of the Application inter-partes andiv.That the OCS Membley Police Station do ensure compliance of these orders.

4. The Respondent on his part filed the Replying Affidavit sworn on the 30/1/2024. He accused the Tenant of breaching Clause ‘t’ of a lease agreement but which however was not presented to the court. That though the demised premises were meant for take away services of wine and spirits, it had been turned into a bar and restaurant.

5. The respondent claimed that the operations of the Applicant had become a nuisance to other tenants and the same was against the license given by the Tenancy agreement. He grieved that his other tenants were threatening to vacate their premises. He therefore sought that the termination notice be upheld.

6. In my view the issues to determine the matter at hand are the following:-A.Whether the landlord’s undated termination notice is lawfulB.Whether the Applicant’s application dated 26/12/2023 is merited.C.Who should bear the costs of this suit.

Issue no A. Whether the Landlord’s undated termination notice is lawful. 7. The Landlords notice was not dated, it required the Tenant to vacate the demised premises in 10 days and it did not give any reason(s) on the face of it for the termination, indeed the notice was in the format of a poorly drawn letter.

8. 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”.

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

10. Further under section 7 (1) of the Act, it is provided 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…..”.

11. And finally Regulation 4(1) of the Regulations to the Act prescribe the mandatory format of such notice and states as follows:-“A notice under section 4(2) of the Act by a landlord shall be in form A in the schedule to these Regulations”.The above provisions are mandatory provisions and call for strict compliance with the same. Any breach to the same has catastrophic consequences of having such a notice declared a nullity and of no effect in law.

12. In the case of Narshidas & Companyltdv Nyali Air conditioning and Refrigeration services Limited Civil Appeal no 205 of 1995 the court stated that:-“These provisions include the giving of 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 of no effect in law on the plaintiff’s tenancy and the plaintiff was under no duty, legal or otherwise to react to it”.

13. The upshot of this is that the purported undated notice by the landlord to the Tenant is not known to the law and is therefore unlawful and of no effect in law.

Issue no B. Whether the Applicants/Application dated 26/12/2023 is merited.B. Having found that the notice by the landlord was unlawful, it then follows that the Tenant was entitled to move this court for the requisite reliefs and sanctions to secure the tenancy. I would therefore declare the Application as merited and would allow the same in terms of prayers no 3 and 4 unless otherwise lawfully interrupted as per the law established.

Issue no C Who should bear the costs of this suit. 14. Conventional wisdom donated by the proviso to section 27 of the Civil Procedure Act dictates that costs follow the event. In this circumstances the event is the success of the applicant in this matter. I therefore award her costs.

15. In the final analysis, I find that the determination of the application herein has rendered the reference dated 26/12/2023 fully compromised. The same will therefore be considered and determined in the same terms with the application of the same date. Flowing from that, the orders that commend themselves to me are the following,i.That the undated notice of termination of tenancy is declared unlawful and of no legal effect nor consequence.ii.That the Applicants application and reference both dated 26/12/2023 are allowed in terms of prayers 3 and 4 in the application thereof.iii.That the Tenant is awarded costs assessed at ksh 10,000/-.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 29TH DAY OF FEBRUARY 2024. HON. NDEGWA WAHOME MBS - MEMBERBUSINESS PREMISES RENT TRIBUNALRuling delivered in the absence of the parties.HON. NDEGWA WAHOME MBS - MEMBERBUSINESS PREMISES RENT TRIBUNAL29/12/2023