[2025] KEBPRT 26 (KLR)

Njoki v Chege & another (Tribunal Case E1190 of 2023) [2025] KEBPRT 26 (KLR) (22 January 2025) (Judgment)

Neutral citation: [2025] KEBPRT 26 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1190 of 2023

N Wahome, Chair & Joyce Murigi, Member

January 22, 2025

Between

Caren Njoki

Tenant

and

Francis Chege

Landlord

and

Justus Mutua

Caretaker

Judgment

1. This Judgment relates to the Tenant’s Reference dated 28. 11. 2023. The Tenant’s grievances were that she had been denied access to her rented rooms known as Unit No. 21 and 24 within the property known as Capital Heights Apartments within Ruaka area. She also complained that the Respondents had further issued her with a notice to vacate the said premises contrary to the Landlord and Tenant (Shops, Hotels and Catering Establishments Act) Cap 301 of the Laws of Kenya. We hereinafter refer to the same as “the Act”.

2. In the interim, this court had by a Ruling dated 17. 4.2024 confirmed that it had jurisdiction to preside over all the matters at hand and therefore dismissed the Landlord’s preliminary objection which had challenged the same.

3. At the hearing of the Reference, the Landlord testified as LLW1 and closed his case whereas the Tenant also testified as TW1 and also closed her case. The parties were to render written submissions but only the Landlord complied by filing the submissions dated the 12. 11. 2024.

4. The evidence of the Landlord was that;-i.He had rented the Tenant 4 units, namely Nos. 11, 21, 24 and 34 either directly or through proxies but without knowing that all the units belonged to her.ii.The Tenant subsequently relinquished unit Nos. 11 and 34 but retained Units 21 and 24 but she had issues with payment of rent.iii.He used auctioneers and with the help of the area chief was able to attach some of the Tenant’s goods and sold the same in recovery of the rent arrears and further installed a new Tenant on Unit No. 24 leaving the Tenant with only Unit 21. iv.The Tenant fell into huge rent arrears and she voluntarily also left Unit 21 in August, 2023. v.In total, the Tenant owed him Kshs. 247,000/= in rent arrears and Kshs. 3,090/= in utility bills totaling to Kshs. 250,090/= and which he claimed.vi.He also put reliance on his replying affidavit sworn on the 8. 12. 2023 and produced the annexures thereof as exhibit Nos. 1 to 10.

5. The Tenant on her part relied on her oral evidence in court, the Application dated 28. 11. 2023 and her further affidavit dated 19. 2.2024. Her evidence is that;i.She had never entered into any formal/written lease agreement with the Landlord.ii.The Landlord was aware that she was running an Air BNB business on Unit Nos. 11, 21, 24 and 34 just like the Landlord and 8 other Tenants at the premises.iii.That Unit No. 24 was irregularly taken over by the Landlord and leased to a third party whereas she had been denied access to Unit No. 21 since February, 2024. iv.She did not owe any arrears in rent and in any event, the Landlord had retained her rent and utility deposits for the 4 units.v.The Landlord had also attached her goods and sold the same and had not accounted for the proceeds thereof.

6. The Tenant therefore sought to be allowed quiet possession of Unit Nos. 21 and 24 and for the notice of termination dated 15. 10. 2023 to be declared unlawful. It is however to be appreciated that this court in its Ruling dated 17. 4.2024 had acknowledged that unit No. 24 had been taken up by a third party and would therefore be unjust to restore it to the occupation of the Tenant.

7. Having perused the parties pleadings and documents, their oral evidence in court and the submissions by the Landlord, it is in our view that the issues that arise for determination are the following;-A:Whether the notice of termination dated 15. 11. 2023 was lawful.B:Whether the Tenant’s Reference dated 28. 11. 2023 is merited.

8. Before delving into the first issue as identified hereinabove, we wish to reiterate our determination in our Ruling dated 17. 4.2024 that indeed this court has the wherewithal to superintend over this matter. From the evidence on record and admitted by the Landlord, the Tenant, the Landlord and others were operating the business of Air BNB at the building which houses unit Nos. 21 and 24.

9. Indeed, from the Tenants annexures “NJ-c” and “NJ-d” in the further affidavit dated 19. 12. 2023 demonstrates that the stakeholders in the Air BNB business including the Landlord had even opened a whatsup group to facilitate the ease of executing the business of Air BNB. Also in part of the discources between the Landlord and the Tenant in Annexures “NJ-b” and “NJ-c” he is complaining about the Tenant’s client.

10. We doubt that with the security at the premises complete with caretakers, the Tenant would have operated an Air BNB without the knowledge, authority and consent of the Landlord. It is therefore determined that the relationship of the Landlord and Tenant was one as envisaged under Section 2(1) of the Act.

11. We now turn on the issues for determination, the first one being whether the notice of termination dated 15. 10. 2023 was lawful. 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.”

12. The prescribed form as alluded to is to be found under Section 4(1) of the Regulations to the Act which provides that;-“A notice under Section 4(2) of the Act by a Landlord shall be in form A in the Schedule to these Regulations.”

13. Further, Section 4(4) of the Act provides the timelines for a notice such as the impugned one herein to be effective. It provides thus;-“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.”

14. Over above the requirement to comply with the mandatory provisions cited hereinabove. Section 7 provides the grounds upon which a termination notice may be anchored on. In our view, the Landlord fell short of the threshold set by the law in his termination notice dated 15. 10. 2023. The same was in clear and plain conflict with Sections 4(2) and 4(4) of the Act and Regulation 4(1) of the Regulations to the Act.

15. The partial compliance with the law by properly stating the ground for termination cannot save the otherwise fatally defective notice dated 15. 10. 2023. The same was not in the prescribed form and gave the Tenant barely one (1) day to deliver vacant possession of the demised premises. The said notice was therefore unlawful and of no legal consequence.

16. In this, we find reliance on the case of; Fredrick Mutua Mulinge t/a Kitui Uniform vs Kitui Teachers Housing Co-operative Society Ltd [2017] eKLR where the High Court held that;-“It is clear from the foregoing authorities that the tenancy notice dated 28. 6.2014 was null and void for failing to give the Appellant two (2) months’ notice as required under the Act and as such was of no legal effect. Life could not be breathed into the defective notice by the letter dated 1. 7.2014 through which the Respondent purported to amend the effective date of the notice. The letter was not a notice in the prescribed form provided by the Act.”

17. We therefore answer the first question in the negative and declare the impugned notice of termination of tenancy dated 15. 10. 2023 as illegal.

18. On whether the Tenant’s Reference dated 28. 11. 2023 has merit, we would answer the same in the positive. The Landlord attached the Tenant’s goods in effecting levy of distress to recover purported rent in arrears. No account was taken on the proceeds of the sale of the auctioned goods and no explanation was rendered to this court. The issue was in our view deliberately overlooked probably for reasons that no plausible logic would suffice thereof.

19. The Landlord further admitted to taking up unit No. 24 without following the due process of the law. He invoked some strange authority from the area chief. Sadly, no such authority is known to Cap 301 of the Laws of Kenya. The actions of the Landlord were therefore in breach of the law.

20. The Landlord claimed that the Tenant voluntarily left the demised premises on the 30. 8.2024 but the Tenant claims that she was denied access thereof in February, 2024. We note that the rent arrears claimed by the Landlord at Kshs. 250,590/= is for up to 30. 8.2024. In our view, the Tenant could not have therefore owed the Landlord the amount of Kshs. 250,590/= which is inclusive of purported Kshs. 3,090/= for utility bills.

21. This becomes more clearer when looked against the Landlord’s exhibit No. FC3 and FC4 where the Tenant in whatsapp discourse with the Landlord admitted and also in a letter under her own hand. Furthermore, the Mpesa statements by the Tenant marked as annexure NJ-d do not show any payment on the amount claimed by the Landlord as at February, 2024.

22. It is important to also appreciate that the Tenant’s claim that she was also locked out of unit No. 21 and denied access into the same was never denied by the Landlord. This was since February 2024. We would therefore opine that out of the claimed rent at Kshs. 250,590/=, the rents for the months of between February 2024 and August 2024 would be deducted therefrom.

23. The rent being Kshs. 25,000/= per month for 7 months could sum up to Kshs. 175,000/=. When you add the deposit for rent and utilities at Kshs. 30,000/= that would total Kshs. 205,000/=. In essence, the amount that would be owed to the Landlord by the Tenant would be about Kshs. 45,590/=.

24. In our view, the Landlord would also not be entitled to this amounts as he did not account for the proceeds of the attachment of the Tenant’s goods. He also removed the Tenant from Unit Nos. 21 and 24 without following the due process of the law. We would therefore in the circumstances determine that the Landlord is not entitled to either the Kshs. 250,590/= or Kshs. 45,590/= in rent arrears as he acted in breach of the Act and made the Tenant to lose the tenancy on Unit Nos. 21 and 24.

25. Any rent that may have been in arrears shall be treated as compensation to the Tenant for the loss of her lawful tenancy in unit Nos. 21 and 24. In this we rely on the case of; Lena Sevange vs Robert Oyieko Angoi [2020] eKLR where the court held that;-“Having said that, it would not be practical to set aside the order issued on the 12. 4.2019 and reinstate the Appellant in the premises as the owners of the premises have already leased the premises to the Respondent. The Applicant’s only recourse is in damages for loss of tenancy. The Appellant is also at liberty to sue the owners of the demised premises for the refund of the unutilized rent and general damages for breach of the lease agreement.”

26. We therefore determine that any rent owed by the Tenant to the Landlord is to offset the damages and loss suffered by the Tenant for the loss of her tenancy. We take cognizance of the reality that the Tenant has not been able to access her premises in unit No. 21 since February, 2024 and we may not be able to vouch for its current status. To enforce such a tenancy may therefore be an exercise in futility.

27. On costs, we find that this is an ideal case to direct that each party do bear own costs. In this, we take cognizance that both parties have recorded partial success in this matter.

28. There are items that were never collected by the Tenant from both unit Nos 21 and 24. The Tenant shall evacuate the same within 15 days of the date hereof and the Landlord shall facilitate the seamless execution and implementation of this directive.

29. In conclusion, we make the following orders;-1. That the notice of termination dated 15. 11. 2023 is illegal and of no legal consequence.2. That any rent owed to the Landlord by the Tenant shall be set off against the damages suffered by the Tenant for loss of tenancy and the interference with her quiet possession of the demised premises otherwise known as Unit Nos. 21 and 24 within the Capital Heights Apartments.3. The Landlord shall facilitate the Tenant and give her complete access to remove all her items from his premises within 15 days of the date hereof.4. Each party to bear own costs of this suit.Those are the orders of the court.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF JANUARY, 2025HON. NDEGWA WAHOME, MBSPANEL CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALANDHON. JOYCE MURIGI - MEMBER