[2024] KEBPRT 124 (KLR)

Muthui v Mwendia & another (Tribunal Case E517 of 2023) [2024] KEBPRT 124 (KLR) (24 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 124 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E517 of 2023

P May, Member

January 24, 2024

Between

Amos Muthui

Tenant

and

Catherine Mwendia

1st Landlord

Betabase Auctioneers

2nd Landlord

Ruling

1. The present proceedings were initiated through the reference filed by the tenant dated 25th May, 2023. The tenant craved for the Tribunal’s intervention to stop the looming levying of distress. Contemporaneous with the reference, the tenant filed an application under certificate seeking orders to restrain the landlord from levying distress and an order of temporary injunction. The application was placed before the Tribunal whereby ex-parte interim orders were issued in favour of the tenant.

2. The landlord upon being served duly entered appearance and filed their response in opposition to the application. The landlord from the onset maintained that the Tribunal was divested of the jurisdiction to hear and determine the dispute since the notice of termination he had issued had lapsed thus terminating the tenancy relationship.

3. The landlord reiterated that the process of levying distress that he had commenced was undertaken within the full purview of the law and the allegations of the same being irregular and unlawful were unfounded and amounted to baseless allegations.

4. The landlord apart from filing the replying affidavit also filed an application under certificate dated 23rd June, 2023. I have perused through the said application and in my respectful view the landlord ought to have incorporated the contents of the said application in his replying affidavit. The same was filed prematurely as the landlord had the opportunity to ventilate his case through the replying affidavit as provided under Order 51 rule 14 of the Civil Procedure Rules. I will therefore disregard the said application.

5. The parties were directed to canvass the application by way of written submissions, which I have duly considered and would proceed as follows:

6. It is prudent to lay out in a chronological manner the facts that led to the present dispute. The landlord alleges that they served the tenant with a notice to terminate tenancy dated 6th February, 2023 and which was to take effect on 15th April, 2023. The landlord avers that the said notice did not elicit any response from the tenant until he commenced the process of levying distress which precipitated the filing of the present proceedings.

7. At the onset, it is important to restate that the parties do not dispute that the nature of tenancy that existed between the parties was that of controlled tenancy. It was therefore expected that the Landlord/Respondent would comply with the prerequisites set out in sections 4(1), (2), (4) & (5) of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act. These provide that:4. “Termination of and alteration of terms and conditions in controlled tenancy1)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 conditions or right or service enjoyed by the tenant of any such tenancy shall be altered, other than in accordance with the following provisions of this Act.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 on the prescribed form……4)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. Provided that—i.where notice is given of the termination of a controlled tenancy, the date of termination shall not be earlier than the earliest date on which, but for the provisions of this Act, the tenancy would have, or could have been, terminated……5)A tenancy notice shall not be effective for any of the purposes of this Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration or reassessment concerned and requires the receiving party to notify the requesting party in writing, within one month after the date of receipt of the notice; whether or not he agrees to comply with the notice.”

8. It is evident that the Landlord and Tenant (Shops, Hotels & Catering Establishment) Act Cap 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 provides that a controlled tenancy shall not terminate or be terminated otherwise than in accordance with specified provisions of the Act. This includes: (i). giving a notice in the prescribed form; (ii). The notice shall not take effect earlier those two (2) months from the date of receipt by the Tenant and (iii). The notice must specify the grounds upon which the termination is sought. The Notice should also be in the prescribed form that is Form A where the Landlord should ask the Tenant in writing whether or not they will comply with the notice.

9. The tenant has denied being served with the notice to terminate tenancy. The landlord has in rebuttal attached a copy of the said notice which bore the tenant’s signature. The landlord therefore complied with the provisions of section 4(6) of the Act which state as follows:A tenancy notice may be given to the receiving party by delivering it to him personally, or to an adult member of his family, or to any other servant residing within or employed in the premises concerned, or to his employer, or by sending it by prepaid registered post to his last known address, and any such notice shall be deemed to have been given on the date on which it was so delivered, or on the date of the postal receipt given by a person receiving the letter from the postal authorities, as the case may be.

10. It would appear to me that the tenant was served with the termination notice but opted to do nothing. He only swung into action when the Landlord commenced the levying of distress. He had ignored the smoke signals and sensed danger when he saw the flames.

11. I do therefore find that the notices to terminate tenancy by the landlord in this case are valid as the landlord has satisfied the requirements of section 7(1)(b) and section 4(5) of Cap 301 Laws of Kenya. The tenancy ended when the termination came to effect as it is provided for under Section 4 (4) and Section 10 of the Act and the notice. This crystallized the Landlord’s right to take over possession of the premises. As such the Honourable Tribunal was ousted of its jurisdiction to hear and determine the dispute between the parties herein.

12. In the end, the Tribunal will make the following orders:a.The tenant’s notice of motion dated 25th May, 2023 is dismissed in its entirety.b.In the interest of justice and good order, the tenant shall vacate the premises within 30 days from the date hereof.c.The tenant shall pay any outstanding rent arrears within 14 days from the date hereof.d.Each party shall bear their own costs.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 24TH DAY OF JANUARY, 2024. HON. PATRICIA MAYMEMBER01. 2024Delivered in the presence of;Mr. Kamau for the Applicant/TenantMr. Mwangi for the Landlord/RespondentBPRT CASE NO. E517 OF 2023(NAIROBI) 2