[2022] KEBPRT 232 (KLR)

National Oil Corporation Oil of Kenya v Macharia (Tribunal Case E204 of 2022) [2022] KEBPRT 232 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEBPRT 232 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E204 of 2022

Gakuhi Chege, Vice Chair

July 8, 2022

Between

National Oil Corporation Oil of Kenya

Applicant

and

Dancan Macharia

Respondent

Ruling

1. The landlord through an application dated March 1, 2021 applied for an eviction order against the tenant from the premises known as Tassia plot title No Block 97/62 on the principal ground that it had served him with a notice of termination of tenancy dated October 29, 2021 issued under section 4 (2) of cap301 for reasons that the tenant was using the premises in breach of the prescribed use and authorization by the landlord.

2. The application is supported by the affidavit of Millicent Munene, a business development manager of the landlord and the grounds on the face thereof.

3. In response to the application, the tenant filed a notice of preliminary objection dated April 13, 2022 which in pertinent part states that the application is based on a defective notice which was neither filed in the tribunal nor issued by it.

4. The parties agreed to canvass the preliminary objection by way of written submissions and both complied. I am therefore required to determine whether to uphold or dismiss the objection.

5. It is the tenant’s contention that a similar application was pending in Tribunal Case No 484 of 2019 and that the same came up for hearing on February 23, 2022 but it was not prosecuted.

6. The tenant submits that the landlord concealed that there was a pending application in the said case and that the instant case is meant to cure misteps in the previous case.

7. According to the tenant, the notice dated October 29, 2021 served upon him could not terminate tenancy on December 29, 2021.

8. On the other hand, the landlord submits that the impugned notice was issued on October 29, 2021 after dismissal of the reference in BPRT No. 484 of 2019. The landlord’s counsel submits that he intended to serve the notice on the date it was issued but the tenant was elusive and was only served on November 15, 2021. This is confirmed by the affidavit of service attached to the supporting affidavit.

9. It is further submitted that the tenant did not respond to the notice and that the landlord moved after January 15, 2022 after the period of 2 months expired from the date of service of the termination notice.

10. According to the landlord, the termination notice was only meant to comply with section 4(5) of cap 301 for it to be valid. It is submitted that the notice complied with the said provision as it only took effect, after two months of receipt by the tenant. The timelines within which a notice takes effect however only start to run after the tenant personally receives the notice according to the landlord.

11. The determination of the preliminary objection turns on interpretation of the provisions of section 4 of cap 301 laws of Kenya. Section 4 (4) of the said Act provides as follows:-“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.ii.Where the terms and conditions of a controlled tenancy, provide for a period of notice exceeding two months, that period shall be substituted for the said period of two months after the receipt of the tenancy notice.iii.The parties to the tenancy may agree in writing to any lesser period of notice”.

12. I have looked at the notice of termination dated October 29, 2021 and the affidavit of service thereof and I am convinced beyond any par adventure that the notice did not give the tenant the requisite period of two (2) months. It is my view that no notice should end in the currency of a tenancy month and that the effective date contemplated under section 4 of the Act should be the end of a tenancy month.

13. I refuse to buy the argument that since the landlord did not take any step to enforce the notice that such action would cure the defect in the notice. This argument would presuppose that the landlord can serve a backdated, undated or postdated notice as long as he/she waits for two (2) months to lapse from the date of service. I do not subscribe to that argument as it would make nonsense of the tenure of the whole scheme of section 4 of cap 301, laws of Kenya (see the case of Fredrick Mutua Mulinge T/A Kitui Uniform v Kitui Teachers Housing Cooperative Society Limited [2017] eKLR.

14. The landlord has not demonstrated that there was an agreement to issue a lesser period notice to justify the impugned notice. I therefore find that the application and reference being founded on a defective notice is unsustainable and is a candidate for striking out.

15. In conclusion therefore, I make the following final orders:-i. The tenant’s notice of preliminary objection is hereby upheld.ii. The landlord’s reference dated March 5, 2022 and the application dated March 1, 2022 is hereby struck out with costs to the tenant.iii. The landlord shall be at liberty to issue a proper notice in line with the provisions of section 9(3) of cap301, laws of Kenya.iv. The tenant’s costs are assessed at Kshs 20,000/- which shall be offset against the rent account if not paid within the next thirty (30) days hereof.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF JULY 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Ometo Bryson for the respondent/landlord.No appearance for the tenant.