[2025] KEBPRT 283 (KLR)

Naivas Limited v Distributors & Haulers Limited (Tribunal Case E021 of 2025) [2025] KEBPRT 283 (KLR) (23 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 283 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E021 of 2025

N Wahome, Chair & Joyce Murigi, Member

April 23, 2025

Between

Naivas Limited

Tenant

and

Distributors & Haulers Limited

Landlord

Ruling

1. This Ruling pertains to the Tenant’s Application dated 8th January 2025 and to the Landlords Application dated the 17th January 2025. The Application by the Tenant sought for the following reliefs:-a.An order to compel the Landlord to give access to the demised premises by removing all the structures impending the Tenant’s clients from accessing it.b.An order to allow the Tenant quiet possession of the demised premises as manifests in Title Nos Machakos/BlockII/92, 93, 94 and 95. c.The orders be enforced by the OCS Machakos Police Station and also sought for the costs of the application.

2. On its part, the Landlord sought for the following reliefs, that:-a.The Tenant be restrained from damaging, destroying, altering the structure of the building or interfering with Title Nos. Machakos/BlockII/92,93, 94 and 95. b.The Tenant be compelled to allow the landlord’s surveyor, valuer or relevant professional access to the demised premises with a view to inspecting the property and to ascertain the lettable space.c.The Tenant be compelled to allow the Landlord access to the demised premises.d.The orders be enforced by the OCS Machakos Police Station and for costs of the Application.

3. By directions given by this court and with the concurrence of the parties, the applications dated 8th January 2025 and 17th January 2025 were to be heard together and be canvassed by way of written submissions. Pursuant thereof, the Tenant filed the Replying Affidavit and submissions dated 17th February 2025 and 5th May 2025 respectively.

4. On the other hand, the landlord lodged the Replying Affidavit sworn on the 31st January 2025, and the list of authorities and submissions both dated the 14th March 2025. The evidence by the Tenant is that:-i.The Tenancy relationship between the parties was a controlled one.ii.The Landlord had blocked access to the demised premises and thus denying it quiet possession.iii.It was meeting its cardinal obligations of paying rent when the same fell due and was not in any arrears.iv.The notices of eviction and or termination of tenancy dated 24th September 2024, 14th October 2024 and 7th January 2025 were illegal.v.It was not in breach of any covenant or term of the now controlled tenancy.vi.The claimed damages and defects within the premises were the responsibility of the landlord.vii.It had not interfered with the structural integrity of the premises and all the works carried out thereof were by the Landlord.viii.It had not denied the landlord access to the demised premises.

5. The evidence of the landlord on the other hand was that:-i.The Landlord and Tenant relationship between the parties had lapsed on or about September, 2023 and had not been renewed.ii.The Tenant had interfered with the structural integrity of the premises. By constructing a mezzanine floor, interfered with the roof, drainage system among others.iii.The Tenant had hired goons at night to demolish and vandalise structures within the premises.iv.It had been denied access into the premises by the Tenant.v.It needed to access the premises with a view to inspecting the same and carrying a valuation on the lettable area.vi.In the event the Tenant wanted to continue with the Tenancy, it had to reimburse the landlord Kshs 26,000,000/- for refurbishment and agree to pay rent of about 1,900,000/- exclusive of VAT and service charge.vii.The premises had become a health hazard and was prone to fire accidents.

6. We have perused the parties respective pleadings, documents, evidence and submissions and we are agreed with the parties that the issues that arise for determination in this matter are the following:-i.Whether the Tenant’s Application dated 8th January 2025 has merit.ii.Whether the Landlord’s application dated 17th January 2025 is merited; andiii.Who should bear the costs of the applications.

7. On the issue of whether the Tenant’s application dated 8th January 2025 has merit, we do appreciate that the Tenancy agreement and/or relationship is not formal. It is not written. That therefore brings the same under the governance of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301) hereinafter referred to as “the Act”.

8. Section 2(1) of the said Act provides that:-“Controlled tenancy means a tenancy of a shop, hotel or catering establishment:a.Which has not been reduced into writing, orb.Which has been reduced into writing and which-c.Is for a period not exceeding five years, ord.Contains provision for termination, otherwise than for breach of covenant thereof”.

9. That being the case, the landlord was required to be in complete compliance with the provisions of the Act to enable it alter any term of the tenancy to the adversity of the Tenant. The provisions which the landlord required to comply with are Section 4(2) of the Act which 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”.

10. The prescribed form is that id dictated by Section 4(2) of the Act is provided by Regulation 4 (1) of the Regulations to the Act. The same states that:-“A notice under Section 4(2) of the Act by a landlord shall be in Form A in the schedule to these Regulations”.

11. Further Section 7(1) of the Act requires that a notice to alter the terms of a controlled tenancy be founded on the grounds provided thereunder. The same states thus:-“Whether 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”.

12. In this case, the termination/eviction notices dated 24th September 2024, 14th October 2024 and 7th January 2025 are not in the prescribed form as commanded by Section 4(2) of the Act and Regulation 4(1) of the Regulations to the Act. Without such compliance, such a notice would be in breach of the law and therefore of no effect.

13. In this we find reliance in the case of Lall v Jeypee Investments Ltd Nairobi HCCA No 120 of 1971 (1972) EA 512 where the court stated as follows:“The landlord and Tenant (Shops, Hotels and Catering Establishment) Act is an especially enacted piece of legislation which creates a privileged class of tenants for purposes of affording them the protection specified by its provisions against ravages of predatory landlords. Such protection can only be fully enjoyed if the provisions of the Act are observed to the letter otherwise the clearly indicated intention of the legislative would be defeated. In order to be effective in this fashion the Act must be construed strictly no matter how harsh the result. The Landlord and Tenant Act laid down a code which Parliament intended to be followed and if a landlord does not give notice of termination as prescribed, the notice will be ineffectual……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”.

14. It is our determination therefore that the letters dated 24th September 2024, 14th October 2024 and 7th January 2025 did not meet the threshold of a notice of termination of a controlled tenancy under Section 4(1) of the Regulations to the Act. In the Locus Classicus case of Fredrick Mutua Mulinge T/A Kitui Uniform v Kitui Teachers Housing Co-operative Society Ltd (2017) eKLR the court in the same circumstances made the following holding:-“Life could not be breathed into the defective notice by the letter dated 1st July 2024 through which the Respondent purported to amend the effective date of the notice. The letter was not a notice in the prescribed form provided for under the Act”.

15. We therefore, even without resorting to the legitimacy or otherwise of the stated grounds of termination of tenancy find the purported notices of termination of tenancy dated 24th September 2024, 14th October 2024 and 7th January 2025 unlawful and of no legal effect. It then follows that the Tenant was entitled to move this court for protection. We would therefore allow the application dated 8th January 2025 with costs.

16. Turning to the landlords application dated 17th January 2025, we find that the Tenant has vehemently controverted all the grievances by the Landlord against it by the Replying Affidavit sworn on the 17th February 2025. We also note the following salient features from the landlords own pleadings:-i.Though it had claimed denial of access to the premises, by its letter dated 7th January 2025 (Annexture DKM-7) it claimed from the Tenant cost of repairs undertaken at Kshs 26,900,000/-.ii.By its letters dated 17th June 2008, 30/1/2009, 22/2/2009, 1/8/2012 and 11/5/2021 (annextures DMK-1, DMK 3 DMK 5 (a) and DMK (b) the landlord is seeking authority to cause more developments on the premises.iii.In the lease agreements dated the 1st August 2007 and 10the September 2019 (Annextures DKM-1 and BA-1 respectively) the landlord had let out the entire Title Nos Machakos/BlockII/92, 93, 94 and 95 to the Tenant.iv.The landlord has not denied that it had put a blockade against free access into the premises by both the Tenant and its customers.

17. To compound issues, it defeats logic as to why the Tenant would interfere with the roofing, drainage and water systems, toilets and other critical areas of the premises which would impact negatively to its business. We are also unable to appreciate why the Tenant would unleash goons to demolish and vandalise structures under its active use.

18. Inspite of the above, we are of the view that the responsibilities that the landlord is purporting to import to the Tenant belongs to it. This is in a situation where like in the present case a controlled tenancy is not reduced into writing,

19. The schedule to the Act and in particular clause (v) thereof provides as follows:-“The lessor shall be responsible for all repairs to roofs, main walls, main drains, main electric wiring and structures, and shall be responsible for all necessary renewals to the premises”.

20. The only onus placed on the Tenant, unless otherwise stated in a written instrument, is as stated under Clause (VI) of the schedule to the Act which provides that:-“The lessee shall be responsible for all internal repairs and decorations, fair wear and tear excepted”.

21. It then follows from the above analysis that the landlord has been allowed access to the premises, the lettable area is known from the lease Agreements dated 1/8/2007 and 10/9/2029 and that indeed the landlord is responsible for the repairs claimed against the Tenant. We would therefore dismiss the Application dated 17th January 2025 with costs.

22. We have already decided on costs pursuant to Section 12(1) k of the Act and which are awarded to the Tenant.

23. In the final analysis, the orders that commend to us are the following:-i.That the application dated 8th January 2025 is allowed in terms that the Tenant shall be allowed complete quiet possession of the premises known as Machakos/Block 11/92, 93,94 and 95 pending the hearing of the reference herein.ii.That the Application dated 17th January 2025 is dismissed.iii.That the costs of the Applications dated 8th January 2025 and 17th January 2025 are awarded to the Tenant.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RDDAY OF APRIL, 2025. HON. NDEGWA WAHOME MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL. BPRT.Ruling delivered in presence of Counsel for the Landlord and in the absence of the Tenant and Counsel.HON. NDEGWA WAHOME MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL. BPRT.