[2022] KEBPRT 763 (KLR)

Njoroge & 2 others v Kamere & another (Tribunal Case E149 of 2022) [2022] KEBPRT 763 (KLR) (16 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 763 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E149 of 2022

Andrew Muma, Vice Chair

September 16, 2022

Between

Josephine Njoroge

1st Applicant

Esther Mwangi

2nd Applicant

Nathan Kamwaro

3rd Applicant

and

David Njenga Kamere

1st Respondent

Fransic Villa Properties

2nd Respondent

Ruling

1. The 1st, 2nd, & 3rd applicants are tenants of the 1st respondent who is the landlord for plot no 5989/21 having entered into a lease agreement dated May 1, 2019 for a period of 5 years and 3 months.

2. The 1st respondent is the landlord of the applicants. (Hereinafter referred to as the “landlord”)

3. The 2nd respondent is an agent of the 1st respondent.

4. Learned counsel Kithinji Thuranira & Co Advocates represent the applicants/tenants.

5. Learned counsel Wangui Kuria & Co Advocates represent the respondents.

The Dispute Background 6. On February 3, 2022, the landlord through his agents, Fransic Villa properties, issued a notice terminating the tenants’/applicants’ tenancy and required the tenants to vacate by February 15, 2022 for failure to pay rent when it falls due.

7. Aggrieved by the said notice, the tenants filed a reference to the tribunal on February 10, 2022 on the grounds that;a.The landlord’s notice to terminate the tenancy was unlawful, illegal and bad in law which is contrary to the provisions of cap 301 Laws of Kenya;b.The tenants have been paying the rent regularly to the landlord through M-pesa; andc.The said notice is illegal ab-initio and is of no effect and should be dismissed/struck off with costs.

8. On February 17, 2022 the landlord filed a replying affidavit challenging the tenants’ application.

Claim and Defence 9. The landlord and the tenant entered into a tenancy agreement on May 1, 2019 for a period of 5 years and 3 months.

10. The landlord’s claim is that the tenant has been in occupation of the suit premises and failing to pay rent when due. Therefore, he presented a notice to vacate to the tenants.

11. It is the tenants’ claim that they have been paying rent regularly and there are no rent arrears to date.

List of Issues for Determination 12. The parties raised certain issues for determination and the Tribunal shall proceed to analyze the issues discussed by the parties and their counsels who submitted in writing as below:a.Whether the notice terminating the tenancy is unlawful?

Analysis and Findings Whether the notice terminating the Tenancy is unlawful? 13. The tenants claim that the notice issued on February 3, 2022 by the landlord’s agents which required the tenants to vacate the premises by February 15, 2022 is unlawful and contrary to the provisions of cap 301 Laws of Kenya.

14. The lease agreement dated May 1, 2019 provides a clause on instances where the lease can be terminated as has been relied by the landlord as;“If the rent hereby reserved or any part thereof, shall at any time be unpaid for one month after becoming payable (Whether lawfully demanded or not) or in any of the covenants on the part of the lessee herein contained shall not be performed and observed then and in any of the said cases it shall be lawful for the landlord to serve upon the tenant a notice in writing specifying such non-payment.Or breach as aforesaid and require the tenant forthwith to remedy the same and if the lessee shall not within fourteen days comply with such notice, the landlord may at any time thereafter re-enter upon the said premises or any part thereof in the whole and thereupon this lease shall absolutely be terminated but without prejudice to the right of action of the landlord in the respect of any antecedent on the part of the tenant herein contained.”

15. The applicants rely on a clause in the lease agreement dated May 1, 2019 which provides that;“The landlord shall give the tenant 3 months period in notice of its desire to terminate the lease”

16. Section 4 (1) of the Landlord And Tenant (shops, Hotels And Catering Establishment) act cap 301, provides that;Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall 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 than in accordance with the following provisions of this act.

17. Section 4 (1) of the Landlord And Tenant (shops, Hotels And Catering Establishment) act cap 301, makes the clause relied by the landlord in contravention of the act. Therefore, the notice dated February 3, 2022 is not in line with the provisions of the statute.

18. Further, termination of a tenancy is stipulated in section 4 (4) (ii) of theLandlord And Tenant (shops, Hotels And Catering Establishment)act cap 301, as;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.

19. However, in reference to section 4 (4) (ii) of the Landlord And Tenant (shops, Hotels And Catering Establishment) act cap 301, the landlord can issue a proper notice having provided sufficient evidence to show breach of the tenancy agreement through subletting and failure to pay rent when due.

OrdersThe upshot is that the application dated February 17, 2022 are upheld in the following terms;a)The notice dated February 3, 2022 is unlawful, the tenants’ application and reference allowed.b)landlord at liberty to issue a new three (3) month notice they so wish.c)tenant to pay all rent arrears and to keep paying rent as per the lease agreement as and when it falls due failure to which the landlord shall be at liberty to distress.

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon A. Muma this 16th day of September, 2022 in the absence of the parties.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL