[2022] KEBPRT 883 (KLR)

Muthoni v Jowi (Tribunal Case E103 of 2022) [2022] KEBPRT 883 (KLR) (Civ) (29 December 2022) (Ruling)

Neutral citation: [2022] KEBPRT 883 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E103 of 2022

Gakuhi Chege, Vice Chair

December 29, 2022

Between

Emily Muthoni

Tenant

and

Isdora Jowi

Respondent

Ruling

1. Through a reference dated July 28, 2022 brought under section 12(4) ofCap 301, Laws of Kenya. The tenant moved this Tribunal complaining that the landlord was threatening to evict her illegally from the business premises through letters contrary to provisions of Cap 301, Laws of Kenya. She therefore prays for restraining orders against the landlord.

2. The tenant simultaneously filed a motion of even date seeking restraining orders against the landlord from interfering with her enjoyment and peaceful occupation of plot no 30/15, London along Siaya road, Nakuru.

3. In her supporting affidavit, the tenant deposes that the respondent issued her with a defective notice to vacate the suit premises with effect from August 3, 2022 which is annexed as ‘EM1’. This is despite the fact that she had been paying her rent punctually and without fail as per annexure marked ‘EM2’.

4. The notice to vacate is dated July 27, 2022 by the legal firm of Odhiambo & Odhiambo Advocates and requires the tenant to vacate the suit premises so as to give access to the landlord to repair the leaking roof which was almost caving in. she was thus required to vacate the premises by August 3, 2022.

5. The tenant denies that the ceiling and roof was not in the condition set out in the said letter as it was not leaking as evidenced by photographs marked ‘EM4’. The tenant seeks for protection against eviction.

6. The application is opposed through a replying affidavit sworn on December 3, 2022 on the basis that there was another case no 145C of 2020 by the tenant filed on December 11, 2020 in this tribunal which she had never set down for hearing as per annexure marked ‘IJI1.

7. According to the respondent he received a notice dated December 1, 2020 from the County Government of Nakuru under the Public Health Act giving him 21 days to undertake the following repairs:-i.Replace all the leaking corrugated iron sheet with new ones.ii.Replace all the torn and sagging ceiling boards.iii.Repaint the entire internal wall surfaces and ceilings with paints of approved colour and quality (bright oil paint recommended).iv.Replace all the hanging electrical sockets and cable”.

8. Despite several attempts/pleas to the tenant/applicant by the landlord to allow him access to enable repairs, she had declined. As a result, the landlord reported the issue to the police vide OB dated July 25, 2022 marked ‘IJ 3’.

9. The matter was directed to be disposed of by way of written submissions but only the respondent complied.

10. The following issues arise for determination:-a.Whether the notice issued by the landlord upon the tenant is valid.b.Whether the tenant is entitled to the reliefs sought in the reference and application.c.Who is liable to pay costs?

11. Section 4(1) of Cap 301, Laws of Kenya provides as follows:-1. Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall terminate or be terminated and no term or condition in or right or service enjoyed, otherwise than in accordance with the following provisions of this Act”.

12. Section 4(2) of the said Act provides as follows:-2. 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. The prescribed form of notice under regulation 4(10 of the Landlord and Tenant (shops, Hotels and Catering Establishments) Tribunal ) forms and procedure) Regulations (1966) is form A in the schedule to the Regulations.

14. According to the landlord, the tenant in filing the instant suit is seeking to evade the inspection report from the County Government in respect of the occupied premises and had filed a second case contrary to section 6 of Civil Procedure Act which prohibits proceedings on matters directly and substantially in issue in a previously instituted suit or proceedings between the same parties in any court having jurisdiction in Kenya.

15. The landlord’s counsel cites the decision in the case of Kenya National commission on Human Rights v Attorney General Independent Electoral & Boundaries Commission & 16others(interested parties) cited in Republicv Paul Kihara Kariuki, Attorney General & 2othersex-parteLaw Society of Kenya (2020) eKLR on the doctrine sub-judice. He also cites the case of Raila Odinga & Another v Independent Electoral and Boundaries Commission & 2others (2017) e KLR that failure to comply with a lawful demand, leave alone a specific court order leaves the court with no option but to draw an adverse inference against the party refusing to comply.

16. The main issue before me is whether the landlord’s notice to the tenant is valid or not and whether the Public Health notice can supersede the provisions of Cap 301, Laws of Kenya. Secondly, whether there is evidence placed before me that there is a similar case between the parties herein over the same subject matter pending before this tribunal touching on the issues herein.

17. I have looked at the impugned notice and the same is not in the prescribed form neither does it comply with all the provisions of section 4 of Cap 301, Laws of Kenya. It gives the tenant only 7 days to vacate the suit premises contrary to section 4(5) of the said Actwhich requires a notice of 2 months.

18. In the case of Fredrick Mutua Mulinge t/a Kitui Uniform v Kitui Teachers Housing Co-operative Society Limited (2017) eKLR superior court cited several decisions on the requirement of strict compliance with provisions of Cap. 301, Laws of Kenya. I only need to restate what was held in the case ofLall v Jeypee Investments Ltd(1972) EA 512 cited at page 5/6 as follows:-“The landlord and Tenant (Shops, Hotel and Catering Establishments) Act is an especially enacted piece of legislation which creates a privileged class of tenants for the purpose of affording them the protection specified by its provisions against ravages of predatory landlord. Such protection can only be fully enjoyed if the provisions of Act are observed to the letter otherwise, the clearly indicated intention of the legislation would be defeated. In order to be effective in this fashion, the Act must be constructed strictly no matter how harsh the result. The landlord and Tenant Act laid down a code which does not give notice of termination as prescribed, the notice will e ineffectual. This may seem a technical and unmeritorious defence but there is no doubt that the court has no power to dispense with these time limits if the defendant chooses to object at the proper time. This is an Act which requires in so far as the giving of the notice is concerned, absolute and complete not merely substantive compliance with its peremptory provisions”.

19. Guided by the said decisions, I find and hold that the notice issued to the tenant herein is ineffectual, null and void. The provisions of the Public Health Act under section 4 ofCap 301, Laws of Kenya. The landlord ought to have given a proper notice under the latter Act.

20. In absence of non-compliance with the requirements of Cap. 301, Laws of Kenya by the Landlord, the tenant is entitled to the reliefs sought in the reference and application dated July 28, 2022 as this tribunal will not countenance an illegal eviction against her as doing so shall defeat the very foundation of its establishment.

21. As regards costs, the same are in the tribunal’s discretion under section 12(1) (k) of Cap 301, Laws of Kenya but always follow the event unless for good reasons otherwise ordered. I have no reason to deny the tenant costs.

22. In conclusion, the final orders which commend to me in respect Cap 301, Laws of Kenya are as follows:-a.The landlord’s notice to terminate tenancy dated void on account of failure to comply with section 4 of Cap 301, Laws of Kenya.b.The landlord either by himself, servants, agents and/or employees is restrained from in any manner interfering with the tenant’s occupation and use of the business premises on plot no 30/15 London along Siaya/Nakuru Road, Nakuru County without adhering to provisions of Landlord and Tenant (Shops, Hotels and Catering Establishments) Ac, Cap 301, Laws of Kenya.c.The landlord is granted leave to serve a proper notice under the said Act.d.The landlord shall pay costs of Kshs 20,000/- to be deducted form rent if not paid within the next fourteen (14) days to the Tenant.It is so ordered.

RULING DATED, SIGNED & VIRTUALLY DELIVERED THIS 29TH DAY OF DECEMBER, 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Tenant present through Timothy NgariNo appearance for the Landlord.