[2024] KEBPRT 583 (KLR)

Mutisya v Ngong Butchers’ Cooperative Society (Tribunal Case E1044 of 2023) [2024] KEBPRT 583 (KLR) (Civ) (1 March 2024) (Ruling)

Neutral citation: [2024] KEBPRT 583 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E1044 of 2023

M Makori, Member

March 1, 2024

Between

Peter Kioko Mutisya

Tenant

and

Ngong Butchers’ Cooperative Society

Landlord

Ruling

1. This is a consolidation file and a close flow of arguments arising from case Number Nairobi BPRT E1044 of 2023, Nairobi BPRT E1201 of 2023 and Nairobi E586 of 2023 between Peter Kioko Mutisya v Ngong Butchers Cooperative Society. The Orders that this Honourable Court shall be applicable in all the three cases touching on the subject matter and relating to the same individuals herein.

2. Fast-forward, the present claim was filed vide a Reference Dated 31st August, 2023 and which was opposed vide Replying Affidavits and/or Applications filed by Peter Kioko Mutisya dated on even dates.

3. The said Notice was to take effect on 1st November, 2023 on the grounds that the Landlord wanted to use the demised premises for their own use and that the Tenant has destroyed the premises and the Landlord wanted to renovate it.

4. Though the parties were at liberty to file written submissions in support of their diverse and/or unique position, as at the time of doing this Ruling only the Landlord had had filed their submissions dated 22/02/2024.

5. From the totality of the pleadings filed by parties and Replying Affidavits made as well as submissions of parties one issue poses itself for determination and that is Whether the Notice to Terminate Dated 31st August, 2023 is valid notice to terminate the tenancy agreement between the Parties herein?

6. To address this issue I would like to focus on the provisions of Shops, Hotels and Catering Establishments) Act on termination of a tenancy. Section 7 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act establishes the grounds upon which a landlord can terminate a tenancy as follows;1. 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—a.where, under the tenancy under which the tenant holds for the time being, the tenant has any obligations in respect of the repair and maintenance of the premises comprised in such tenancy, that the tenancy ought to be terminated in view of the state of repair of the premises, being a state resulting from the tenant’s failure to comply with the said obligations;b.that the tenant has defaulted in paying rent for a period of two months after such rent has become due or payable or has persistently delayed in paying rent which has become due or payable;c.that the tenant has committed other substantial breaches of his obligations under the tenancy, or for any other reason connected with the tenant’s use or management of the premises comprised in the tenancy;d.that the landlord has offered and is willing to provide or secure the provision of alternative accommodation for the tenant, that the terms on which the alternative accommodation is available are reasonable having regard to the terms of the tenancy and to all other relevant circumstances, and that the accommodation and the time at which it will be available are suitable for the tenant’s requirements (including the requirement to preserve goodwill) having regard to the nature and class of his retail trade or business or enterprise and to the situation and extent of, and facilities afforded by, the premises comprised in the tenancy;e.that the tenancy was created by the subletting of part only of the premises comprised in a superior tenancy of which the landlord is the owner of interest in reversion expectant on the termination of that superior tenancy, and that the aggregate of the rents reasonably obtainable on separate lettings of such premises in parts would be substantially less than the rent reasonably obtainable on a letting of such premises as a whole, and that on the termination of the tenancy the landlord requires possession of such premises as a whole for the purpose of letting or otherwise disposing of the same as a whole;f.that on the termination of the tenancy the landlord intends to demolish or reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises;g.Subject as hereinafter provided, that on the termination of the tenancy the landlord himself intends to occupy for a period of not less than one year the premises comprised in the tenancy for the purposes, or partly for the purposes, of a business to be carried on by him therein, or at his residence.

7. In Oscar Luvaha (Explore Auto Valuers and Assessories Limited) v Babi Investments & another [2021] eKLR where the court in citing the Court of Appeal decision noted that;“The two requirements therefore for a valid notice of termination of the tenancy is first, that the notice shall be in the prescribed form and secondly, that the notice shall not take effect until after expiry of two months, or such notice period as may be agreed by the parties. This was emphasized in the case of Munaver N Alibhai T/A Diani Boutique v South Coast Fitness & Sports Centre Limited [1995] eKLR, where the Court of Appeal at Mombasa in finding that the notice of termination of the tenancy was void for failing to comply with Section 4 of the Act stated as follows; -“The Act 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. The notice must also specify the grounds on 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.”

8. The position of the law on the issue of a termination notice as discussed in Manaver N. Alibhai T/A Diani Boutique v South Coast Fitness & Sports Centre Limited, Civil Appeal No. 203 of 1994, stated that: -“The Act 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. The notice must also specify the ground 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.

Analysis and Determination 9. It is evident that the Notice Dated 31/08/2023 is in conformity to notice of termination of the tenancy as required by the Provisions of the Principal Act, and as per Form A as prescribed by Shops, Hotels and Catering Establishments) Act.

10. From above cited provisions of the law and authorities cited hereto, it is without a doubt that the Notice of Termination Dated 31/08/2023 is as contemplated under the Act, case laws and appropriate provisions of the law as highlighted herein above and therefore valid.

11. Having established that the Notice of Termination of the tenancy dated 31/08/2023 was in the prescribed form, I proceed to pronounce the appropriate reliefs regarding this matter as follows;-i.That the Reference by the Tenant dated 24th October, 2023 is dismissed and the Landlord’s Application Dated 28th November, 2023 is granted in terms of prayers 2 and 3. ii.The Tenant shall vacate the suit premises within 30 days of today and hand over vacant possession of demised property namely Stalls No. 12 and 13 on Land Reference No. 23124/30 in Ongata Rongai Market, Kajiado North Sub County within Kajiado County subject to clearing any outstanding rent arrears if any.iii.In default of order (ii) above and upon lapse of 30 days of today, the Landlord shall be at liberty to evict the Tenant from Stalls No. 12 and 13 on Land Reference No. 23124/30 in Ongata Rongai Market, Kajiado North Sub County within Kajiado County.iv.The OCS Kajiado North Police Station to ensure compliance with the Orders of this Court.v.Each party shall bear their own costs

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 1ST DAY OF MARCH, 2024. HON. MIKE MAKORI (MR.)MEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of;Mr. Wanyoike for the landlordMr. Kamau for the tenant