[2022] KEBPRT 241 (KLR)

Njure v Karuki (Tribunal Case E011 of 2022) [2022] KEBPRT 241 (KLR) (Civ) (18 July 2022) (Ruling)

Neutral citation: [2022] KEBPRT 241 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E011 of 2022

P May, Vice Chair

July 18, 2022

Between

Jacqueline Kaloki Njure

Applicant

and

Ann Karuki

Respondent

Ruling

1. The parties herein entered into a lease agreement sometimes in 2014. The terms of the lease were explicit and mutually agreed upon by the parties. The landlord however issued a notice of termination of tenancy dated January 19, 2022 which was to take effect as from April 1, 2022. The tenant was aggrieved by the said notice and subsequently filed a reference under section 12(4) of Cap 301 challenging the said notice. Contemporaneously she filed the notice of motion dated March 25, 2022 filed under certificate of urgency. This ruling will determine the said application.

2. The applicant sought for orders of temporary injunction against the landlord and an order for payment of rent to the tribunal. The tenant contends that the notice to terminate the tenancy was not issued in good faith and the acts of the landlord were accentuated by malice.

3. The application was opposed vide the replying affidavit sworn by the respondent. She stated that she acted within the purview of the law and that the present application has no basis in law.

4. The parties elected to canvass the application by way of written submissions. I have considered the rival submissions on record and would proceed as follows:

5. The parties do not dispute that the tenancy created between them was a controlled tenancy. The dispute is therefore properly before the tribunal.

6. I will therefore proceed to determine the following issues as framed by the parties in their submissions:a.Whether the tenant has established sufficient grounds for the grant of orders sought.b.Whether the notice issued was proper and lawful.

7. In determining the above issues, it is imperative to note that they are intertwined. We cannot deal with them in isolation. I will therefore address the merits of both jointly.

8. I have well established that there existed a controlled tenancy between the landlord and the tenant. Termination of the said tenancy requires issuance of a termination notice in prescribed form. It is incumbent upon this tribunal to assess that the notice issued to the tenant by the landlord is properly as prescribed in law by Cap 301. Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act states:4. Termination of, and alteration of terms and conditions in, controlled tenancy(2)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.(4)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.

9. The above position of the law on the issue of a termination notice is now settled. The court in Manaver N Alibhai T/A Diani Boutique v South Coast Fitness & Sports Centre Limited, Civil Appeal No 203 of 1994, stated that: -“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not 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 specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The notice must also specify the ground upon which termination is sought. The prescribed notice in Form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice.”

10. It is evident that the notice of termination of the tenancy herein was in Form A as prescribed by the Act. Further, the notice of termination of the tenancy was to take effect on April 1, 2022, being a period exceeding two months as required by the Act.

11. Having established that the notice of termination of the tenancy was in the prescribed form, I shall proceed to analyze the substance of the notice with regard to the grounds of termination of the tenancy as follows:Whether the landlord has met the requirements of section 7 (1) (f) of the Act?

12. Article 40 of the Constitution of Kenya 2010 guarantees the right of every person either individually or in association with others, to acquire and own property. This includes the right of a proprietor of land to enjoy and benefit from the use of such property and to deal with the property as they please within the confines of the law.

13. Accordingly, section 7 of the Act clearly stipulates the grounds upon which a landlord may seek to terminate tenancy. One of the grounds as enshrined in section 7 (f) of the Act is: -7(f) that on the termination of the tenancy the landlord intends to demolish or reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises.

14. The above provision affirms the right of the landlord to undertake renovations and/or repairs to their property. According to the termination notice served upon the tenant, the landlord sought to terminate the tenancy on the ground “that on termination the landlord intends to do renovations and she wouldn’t be able to do so without obtaining vacant possession.”

15. It is trite law that he who alleges must prove. The landlord has not tendered any evidence to convince the tribunal that the renovations to be undertaken are major. There is no documentation from the relevant agencies giving clearance for the intended construction works. On this basis therefore, I find that the landlord has not convinced this honourable tribunal that the renovations to be conducted in the suit premises are substantial or extensive in nature to warrant vacant possession of the suit premises. The landlord has therefore failed to meet the threshold of terminating a tenancy in accordance with Section 7 (1)(f) of the Act.Whether the landlord has met the requirements of section 7 (1)(b) of the Act?

16. One of the grounds on which a landlord may seek to terminate a tenancy as specified in section 7 (1) (b) of the Act is:7(1)(b) that the tenant has defaulted in paying rent for a period of two months after such rent has become due or payable or has persistently delayed in paying rent which has become due or payable.

17. The tenant has admitted to being in rent arrears but has been quick to state that the landlord has refused to receive her rent in a move calculated to remove her from the demised premises. The landlord other than stating that they had appointed the agent to collect rent has not offered any plausible defence to counter the allegations. They have not attached any evidence of the steps taken to demand or recover the rent due.

18. The landlord has therefore failed to satisfy the tribunal that the notice was regular and proper as envisaged under the law.

19. In the upshot, the tenant’s application dated March 25, 2022 is allowed in the following terms:i.The landlord shall file and serve an up-to-date statement of account indicating the actual rent arrears due within 7 days.ii.The tenant upon receipt of the said statement shall pay all the outstanding rent arrears within 21 days and file proof thereof.iii.The reference is compromised under similar terms.iv.Each party shall bear their own costs.It is so ordered.

RULING SIGNED, DATED AND DELIVERED THIS 18TH DAY OF JULY 2022. HON. P. MAYVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Gikundi for the LandlordNo appearance for the Tenant