[2021] KEBPRT 414 (KLR)
The tribunal found that the landlord failed to provide any affidavit of service or other evidence to prove that the notice to terminate tenancy dated 6th March 2020 was served on the tenant. In the absence of such proof, and given the tenant's denial of service, the tribunal held that it could not determine whether...
Source-derived case information.
- Citation
- [2021] KEBPRT 414 (KLR)
- Parties
- Respondent: Nimo Sheikh Mohammed; Applicant: Ewaso Petroleum Ltd
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 125 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Vacant Possession
- Outcome
- application dismissed
- Legal Topics
- Business Premises Tenancy, Termination of Tenancy, Service of Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nimo Sheikh Mohammed
Respondent
Ewaso Petroleum Ltd
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Vacant Possession
Legal Issues
- 1 Whether the landlord properly served the tenant with a notice to terminate tenancy as required by law.
- 2 Whether the landlord is entitled to an order of vacant possession in the absence of proof of service of the termination notice.
Ratio Decidendi
The tribunal found that the landlord failed to provide any affidavit of service or other evidence to prove that the notice to terminate tenancy dated 6th March 2020 was served on the tenant. In the absence of such proof, and given the tenant's denial of service, the tribunal held that it could not determine whether the notice was served without a full hearing. Consequently, the application for vacant possession was dismissed, as the landlord had not met the evidentiary threshold required to obtain such an order at this stage.
Court Disposition
application dismissed
Orders
- The application dated 14th September 2020 is dismissed with costs in the cause.
- The main reference shall be fixed for oral hearing on a priority basis.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 125 OF 2020 (NAKURU)
NIMO SHEIKH MOHAMMED.....................................LANDLORD/RESPONDENT
VERSUS
EWASO PETROLEUM LTD...................................................TENANT/APPLICANT
RULING
1. By a motion dated 14th September 2020, the Applicant/Landlord is seeking for an order of vacant possession of the business premises known as CIS-MARA/OLELESHWA/3361, NAROK TOWN against the Tenant/Respondent.
2. I note that the reliefs sought are predicated upon an allegation that the Tenant was served with notice to terminate tenancy dated 6th March 2020 which took effect on 1st June 2020.
3. The Tenant has denied being served with the said notice and avers that the notice annexed to the supporting affidavit is dated 14th September 2020 which was also not served upon it.
4. The Tenant further avers that when the notice of termination was allegedly served, there was a pending case no. 164 of 2019 between the same parties. The said case was determined on 13th March 2020 directing the Tenant to be paying rent to the Landlord’s advocate.
5. The Tenant avers that pursuant to the said ruling, it has been paying rent to the advocates (Tarus & Co. Advocates) for the Landlord and was not in arrears.
6. I have perused the application and supporting affidavit and note that the Landlord has not annexed any affidavit of service to prove service of the notice to terminate tenancy dated 6th March 2020.
7. The Tenant on the other hand denies service of the notice and there is no way of determining if the said notice was served or not except through a full hearing of the Reference.
8. In the premises, the application dated 14th September 2020 is dismissed with costs in the cause.
9. The main Reference shall be fixed for oral hearing on priority basis.
DATED, SIGNED & DELIVERED THIS 21ST DAY OF JULY, 2021.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
In the presence of:
Nimo Sheikh/Landlord
No appearance by Tenant