[2024] KEBPRT 88 (KLR)

Mwangi v Kimani & 2 others (Tribunal Case E1075 of 2023) [2024] KEBPRT 88 (KLR) (Civ) (24 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 88 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E1075 of 2023

N Wahome, Member

January 24, 2024

Between

Robert Mwangi

Tenant

and

Joseph Kimani

1st Respondent

Strawa Enterprises

2nd Respondent

Vincent Keroe

3rd Respondent

Ruling

1. The Tenant/applicant filed a reference dated 31/10/2023 said to be founded under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments Act (Cap 301) hereinafter refereed to as “the Act: with a complaint to the effect that:-“The Landlord has told me to vacate the business suit premises immediately or else he will forcefully evict me from the business suit premises and my rent is fully paid”.

2. The Reference was accompanied by a Notice of Motion application dated 31/10/2023 which sought for a total of seven (7) reliefs. The Hallmark of the application however was that the Applicant not be evicted from the demised premises and that he be allowed quiet and peaceful occupation and use of the demised premises.

3. In support of the said Application, the Applicant swore an Affidavit dated 31/10/2023 in which he asserted that the respondents had initiated his eviction from the demised premises and that it was the intervention of the OCS Kiserian Police Station which saved him.

4. That he had met his cardinal obligations of timely payment of rent which was at Kshs.5,000/- per month and therefore that the actions of the respondents were in violation of his fundamental rights including that of a decent livelihood. He therefore sought for the protection of this Tribunal.

5. On being served with the application and the reference, the 1st and 2nd Respondents filed a joint replying affidavit sworn by the first respondent and dated 8/11/2023. In it the two respondents asserted that:-i.That he acquired the demised premises from the owner thereof namely Harrison Njoroge Mungai on the 11/4/2016 at a monthly rent of Kshs.15,000/- and the same was reduced into writing annexure “JK1”ii.That by an agreement dated 6/5/2023, he sublet part of the demised premises to the Applicant at a monthly rent of Kshs.5,000/-.iii.The applicant on taking occupation of part of the demised premises became unco-operative and wanted to evict him from space and started dealing with the 3rd Respondent directly.iv.He gave the Applicant a 60 days notice to vacate but he refused to acknowledge the same. The notice was to take effect by end of October 2023 - annexture “JK3”.v.On 21/10/2023, a fight erupted between the Applicant and the 1st Respondent and it is at that, time the 3rd Respondent came to learn that the 1st respondent had sublet part of the demised premises to the Applicant. The matter was reported to Kiserian Police Station and the complaint was registered, - annexture “JK5”.vi.Eventually the 3rd Respondent issued a 7 days termination notice to both the Applicant and the Respondent dated 23/10/2023 - Annexture “JK6”.

6. The 1st Respondent stated that he had already vacated the demised premises pursuant to the aforesaid termination notice by the 3rd Respondent but that he needed this court’s intervention to remove his steel Boards, Shelves and meshwire that he had installed at the demised premises.

7. The 1st Respondent sought to have the Applicants application and reference dismissed with costs as lacking in merit for the reason that he had issued him with a termination notice.

8. The 3rd Respondent on being served with the Application herein, he filed a replying affidavit sworn on the 8/11/2023. In it he asserted that:-i.That he was merely a caretaker of the demised premises.ii.The 1st Respondent was a good tenant paying rent timely until May 2023 when that changed.iii.In October, 2023 there was a commotion at the demised premises and that is when he realized that the 1st Respondent had let out the demised premises to the Applicant since 2021. iv.He was therefore advised by the landlord to issue both with a notice of termination and which he did.v.On the 30/10/2023, another commotion occurred at the suit premises when the 1st Respondent was vacating as the Applicant alleged that he was also being evicted. The OCS Kiserian Police Station intervened and advised the Applicant to seek for orders from this Tribunal.vi.He was served with the orders of this Tribunal which he complied with but requests that the Applicant pays for all the rents in arrears and be ordered to vacate the demised premises as a new tenant has been procured and paid the rent for December, 2023.

9. I have perused both the Tenant’s and Respondents submissions dated 5/12/2023 and 13/12/2023 and have appreciated the dispositions therein. I have also taken into consideration of all the materials placed before me and am of the considered view that the issues for determination herein are:-A.Whether there exists landlord/tenant relationship between the applicant and the 3rd respondentB.Whether the notices to terminate tenancy issued by the 1st respondent and the 3rd respondent on the 21/8/2023 and 23rd october 2023 are lawfulC.Who should bear the costs of this suit

Issue No. A -Whether There Exists a Landlord/tenant Relationship Between The Applicant and The 3Rd Respondent 10. From the record, the demised premises are owned by one Harrison Njoroge Mungai. This is evident from the Rental Agreement dated 11/4/2016 between him and the 1st respondent. The same is annexture “JK1”. It is however not in doubt that the 3rd Respondent as admitted in his replying affidavit sworn on the 8/11/2023 that he is the agent of the landlord. Indeed the notices to vacate to both the Applicant and the 1st Respondent were issued by the 3rd respondent on behalf of the landlord.

11. From evidence, it is clear that the 3rd respondent was a major prayer in all the occurrences at the demised premises. When issues arose as they did on the 21/10/2023 and 30/10/2023 it is the 3rd respondent that appeared to resolve the issues.

12. Indeed the Applicant and the 1st respondent acknowledged the 3rd respondent as the landlord by virtue of his role in relation to the demised premises. Section 5 (2) of the Act provides that:-“Where a landlord gives a tenancy notice to his tenant, he may at the same time give a similar notice to any person to whom the tenant has sublet the whole or part of the premises concerned and thereupon the provisions of this Act shall apply to the sub-tenant and his sub-tenancy as if he were the Tenant of such landlord.

13. It therefore follows that a landlord and tenant relationship between the Applicant and the 3rd respondent on the one part and between the 1st and 3rd respondent of the other part has been established as envisaged under Section 2(1) of the act.

Issue No. B - Whether the Notices To Terminate by the 1st Respondent Dated the 21/8/2023 And by the 3rd Respondent Dated 23Rd October 2023 are Lawful. 14. 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”.

15. Regulation 4(1) of the Regulations to Cap. 301 provide that“A notice under Section 4(2) of the Act by a landlord shall be in Form a in the schedule to these Regulations”.

16. These provisions are coached in mandatory terms and call for strict compliance with the same. The courts have through several decisions also unequivocally delivered themselves categorically on this issue.In the case of Fredrick Mutua Mulinge T/A Kitui Uniform – vs- Kitui Teacher Housing co-operative society Limited (2017) eKLR the court laid down the law on the pre-requisites of a competent notice. It held that:-As regards the period of notice I concur with the court of Appeal holding in the said case of Caledomia supermarket Ltd – vs- Keya National Examinations Council (2002) 2 EA 357 that,- failure to comply with these mandatory requirements rendered the purported notices null and void and incapable of enforcement”.

17. The court while further quoting with approval the case of Manavor N. Alibhai T/A Diani Boutique – vs- South Coast Fitness and Sports Centre Limited Civil Appeal No. 203 of 1994 held that:-“The Act lays down clearly and in detail, the procedure for 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 then in accordance with specified provision of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier then two 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”.

18. It is clear from the foregoing caselaws that the tenancy notices dated 21/8/2023 and 23/10/2023 were null and void abinitio and therefore unlawful..

Issue No. C- Who Should Bear The Costs of the Suit 19. From the circumstances of this case and looking at the pleadings in their totality, I am compelled to depart from the conventional wisdom of Section 27 of the Civil Procedure Act and direct that each party will bear own costs.

20. In conclusion and in the final analysis the orders that commend themselves to me are the following:a.That the notices of termination dated 21/8/2023 and 23/10/2023 are declared to be unlawful and of no effect nor consequence.b.That the Applicant’s tenancy is a controlled tenancy and can only be terminated in strict compliance with Cap. 301. c.The 1st Respondent is granted leave to remove all his goods and/or items from the demised premises and in particular the steel boards, shelves and mesh wire.d.That the Tenant shall pay to the 3rd Respondent all the rents in arrears within 30 days from the date hereof and in default the landlord is granted leave to levy distress.e.That each party will bear own costs.Those are the orders of the court.

RULING DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF JANUARY 2024. ON. NDEGWA WAHOME, MBS - MEMBERBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of Mrs Oketch for the TenantM/S Kimani for the RespondentsHON. NDEGWA WAHOME, MBS - MEMBERBUSINESS PREMISES RENT TRIBUNAL