[2024] KEBPRT 293 (KLR)

Nyambura v Mwangi & 2 others (Tribunal Case E982 of 2023) [2024] KEBPRT 293 (KLR) (1 March 2024) (Ruling)

Neutral citation: [2024] KEBPRT 293 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E982 of 2023

Gakuhi Chege, Chair & J Osodo, Member

March 1, 2024

Between

Eunice Nyambura

Tenant

and

Stephen Kamau Mwangi

1st Respondent

Wainaina Real Estates

2nd Respondent

Little Vineyard Auctioneers

3rd Respondent

Ruling

1. This matter was commenced through a reference/complaint under Section 12 (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, Laws of Kenya. The tenant complained that the landlord instructed auctioneers who proclaimed her goods on 13th September 2023 for rent arrears amounting to Kshs 34,000. 00.

2. She simultaneously filed a notice of motion under Section 34 of the Civil Procedure Act and Section 4(2) and 12 of the Landlord & Tenant (Shops, Hotels and Catering Establishments Act and all other enabling provisions of the Law seeking in pertinent part for orders that the Tribunal be pleased to restrain the Respondents either by themselves, their servants and/or agents from attaching, removing, selling, offering for sale, advertising, alienating and/or disposing in any way her tools of trade pending the hearing and determination of the application and reference. She is also seeking for costs of the application to be provided for.

3. The application is predicated upon the following grounds -a.That the landlord has interfered with the Tenant's peaceful occupation and enjoyment of the premises with intention to alter the terms of the tenancy.b.That the Landlord through the 2nd Respondent instructed the 3rd Respondent to levy distress for rent against the Tenant herein.c.That the 3rd Respondent on the 13th day of September 2023 proclaimed the Tenant’s goods and was threatening to attach the same.d.That the Tenant is a stranger to the alleged rent arrears of Kshs 34,000/-as her rent was Kshs. 16,000/-per month.e.That the Tenant was apprehensive that the 3rd Respondent will attach and sell her tools of trade.f.That the Tenant stood to suffer irreparable loss and damage if the landlord is allowed to continue with his campaign of harassment.

4. In her supporting affidavit sworn on 6th October 2023, the tenant deposes that she has been a tenant of the Landlord from 2010 to date in L.R NO.209/5810.

5. She accuses the landlord of interference with her peaceful occupation and enjoyment of the premises with intention of altering the terms of the tenancy.

6. She further deposes that the Landlord through the 2nd Respondent instructed the 3rd Respondent to levy distress for rent against her. As a result, the 3rd Respondent on the 13th day of September 2023 proclaimed her goods and was threatening to attach the same. The proclamation notice dated 13th September 2023 is marked "EN 1".

7. According to the tenant, the alleged rent arrears of Kshs 34,000/-was unknown as her rent is Kshs 16,000/-per month. She annexes copies of rent receipts marked “EN 2".

8. The tenant accuses the Landlord of failure to keep proper books of accounts as her statement showed that she was in arrears of Kshs 32,000/- while the proclamation states Kshs 34,000/. She attaches a copy of her account statement for 2023 marked "EN 3".

9. She deposes that she was not in rent arrears as alleged by the Landlord as the only pending rent was for the month of October 2023. She was apprehensive that the 3rd Respondent would attach and sell her tools of trade as a result of which she moved to this Tribunal to restrain the Respondents from attaching, removing, selling, offering for sale, advertising, alienating and/or disposing of in any way pending the hearing and determination of the application and Reference.

10. The application is opposed through the replying affidavit of Dominic Mburu Kihanya the Property Supervisor of the 2nd Respondent who is also the authorized managing agent of the 1st Respondent. He deposes that the Applicant is a tenant of the 1st Respondent in the demised business premises known as Shop 10 located in Ngara within the County of Nairobi previously paying a monthly rent of Kshs. 16,000. 00.

11. On the 30th March,2023, the 1st Respondent through the 2nd Respondent served the Applicant with a notice to alter the terms of the tenancy dated 28th March.2023 increasing the rent payable from Kshs. 16,000. 00 to Kshs. 20,000. 00 with effect from 1st June, 2023. The said notice was received by one of her colleagues who is also a tenant of the 1st Respondent, one Silvanus Masia who also received his notice. Copies of the said notices are annexed "DMK-1".

12. Despite service of the notice in the prescribed form, the Applicant did not object to the increment in writing or otherwise and as a result of which the rent increment took effect on 1st June 2023.

13. At the time of the proclamation, the tenant was in arrears of Kshs. 32,000. 00 leading to the instructions issued to the 3rd Respondent to recover the same by way of distress. Annexed to the replying affidavit and marked "DMK-2" are copies of the rent payment statement, instructions to auctioneer and the proclamation notice. It is therefore denied that the Applicant did not keep proper records for the tenants.

14. According to the Respondents, there is nothing illegal in increasing rent to the current prevailing market rates provided the same is done in accordance with the law and that the applicant's current rent is Kshs. 20,000. 00. However, the 1st Respondent put on hold the increment upon being served with the orders of the Tribunal to await the outcome of the claim.

15. It is the Respondents’ position that the applicant's application has no merit, is frivolous and amounts to an abuse of the court process and ought to be dismissed with costs.

16. In her further affidavit sworn on 6th October 2021, the Applicant deposes that the said shop is in the custody of Paul Silvanus Masia who is also a tenant therein occupying shops No. 11 and 12 and that the said notice to increase rent was challenged in BPRT Case Number E595/2023 which was coming for ruling on the 4th day of December 2023.

17. The applicant cites Section 9(3) of Cap 301 and deposes that the Landlord ought to have waited for a period of 2 years before filing and serving the said Notice as the court did not prescribe any shorter period for the same and as such, the notice for rent increment had no basis.

18. The matter was directed to be canvassed by way of written submissions and both parties complied. We shall consider the submissions together with the issues for determination.

19. The following issues arise for determination in this case-a.Whether the tenant is entitled to the reliefs sought in the application and reference.b.Whether the notice to alter terms of tenancy served upon the tenant is valid and enforceable under Cap. 301, Laws of Kenya.c.Whether the tenant owes any rent arrears to the Landlord.d.Who is liable to pay costs of the suit?

20. There is no dispute that the tenant herein was served with notice of increment of rent dated 28th March 2023 pursuant to Section 4(2) of Cap. 301. There is no evidence that the tenant filed a Reference in this Tribunal pursuant to Section 6(1) of the said Act.

21. Section 4(2) of the Act stipulates that-“(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.”

22. Section 6(1) of the Act provides that-“(1)A receiving party who wishes to oppose a tenancy notice, and who has notified the requesting party under section 4(5) of this Act that he does not agree to comply with the tenancy notice, may, before the date upon which such notice is to take effect, refer the matter to a Tribunal, whereupon such notice shall be of no effect until, and subject to, the determination of the reference by the Tribunal:”

23. Section 10 of the said Act provides as follows-“Where a landlord has served a notice in accordance with the requirements of section 4 of this Act, on a tenant, and the tenant fails within the appropriate time to notify the landlord of his unwillingness to comply with such notice, or to refer the matter to a Tribunal then subject to section 6 of this Act, such notice shall have effect from the date therein specified to terminate the tenancy, or terminate or alter the terms and conditions, thereof or the rights or services enjoyed thereunder”.

24. The tenant states that she failed to file a Reference because one Paul Silvanus Masia had a case with the landlord vide BPRT NO. E595 OF 2023. None of the parties herein has exhibited any pleadings or determination in respect of the said case to enable this Tribunal to establish whether it was against the current notice or a different one.

25. The tenant in her Counsel’s submissions cites Section 9(3) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act which states that where a Tribunal has made a determination upon a reference no further tenancy notice shall be given in respect of the premises concerned, which is based on any of the matters affected by the determination in the case of an assessment of rent, until after the expiration of two years after the date of the determination, unless the Tribunal, at the time of the determination specifies some shorter period.

26. The tenant has cited the cases of Viktar Maina Vs Jack & Jill Supermarket Ltd [2012] eKLR, GIella Vs Cassman Brown Limited [1973] E.A 358, Mrao Vs First American Bank Of Kenya Ltd [2003] eKLR & Pius Kipchirchir Kogo Vs Frank Kimeli Tenai [2018] eKLR in support of her application for injunction.

27. The tenant admits failure to oppose the notice by the Landlord submitting that the said notice ought to be filed after a period of two (2) years in accordance with Section 9(3) of the Act. The previous case BPRT Number E1125 of 2022 is said to have been settled on the 16th day of February 2022 and was allegedly filed as a result of an illegal notice purporting to alter the terms of the tenancy by increasing the rent to Kshs.20. 000/= from Kshs.16,000/= vide a letter dated 18th October 2022. According to the tenant, the current notice was issued before the lapse of the two years as per the law hence the filing of BPRT Case No. E595/2023 in which a ruling was to be delivered on the 5th day of December 2023.

28. As observed above, there is absolutely nothing on record to prove that there was a determination of any valid notice of increment of rent issued upon the tenant herein by the landlord to which Section 9(3) of Cap. 301 can be said to apply. It is trite law that he who alleges must prove in line with section 107 & 108 of the Evidence Act, cap. 80, Laws of Kenya.

29. In absence of a reference under section 6(1) of Cap. 301, the tenant cannot be said to have established a prima facie case with a probability of success. In any event, the tenant’s only loss which can be suffered is payment of the additional sum of Koshas 4,000/=per month from the date when the notice took effect. The loss is quantifiable in monetary terms and cannot be said to be irreparable by any stretch of imagination. The tenant’s application therefore fails on the two main principles of injunction.

30. We have seen the decision in the case of Jitendra Mathudas Kanabar & 2 others Vs Fish and Meat Limited [1997] eKLR but did not find it relevant to the circumstances of this case in view of the fact that it concerned a termination notice as opposed to the situation in the present case which involves a notice for increment of rent.

31. In the case of Saheb Vs Hassanally [1981] eKLR, the court of appeal considered the provisions of Section 10 of cap. 301 at page 4/7 as follows-“In my opinion it is clear that under the terms of section 10 if a valid notice is not referred the landlord is entitled to possession without having to prove any of the statutory grounds relied upon in the notice. To be valid a tenancy notice must comply with the provisions of section 4, including the requirements of the use of the prescribed form, of setting out the statutory grounds for relief and of due service. The learned judge was wrong in this case to investigate the grounds relied upon in the notice, but even then, he should have given judgment for the appellant on the ground that was conceded, namely that the landlord required the occupation of the premises for the purposes of his business (section 7 (1) (g)).”

32. In regard to the issue of rent arrears, it is clear that the tenant has been paying a sum of kshs 16,000/= as opposed to kshs 20,000/= as per the increment notice. It is therefore a bare fact that she has accumulated arrears of Kshs 4,000/= per month from 1st June 2023 which translates to a total of Kshs 36,000/= as at 29th February 2024 assuming that all the previous rent payments had been cleared. The landlord is entitled to recover the said amount using legal means including distress under Section 3(1) of the Distress for Rent Act, Cap. 293, Laws of Kenya.

33. Costs of every action before the Tribunal are in its discretion under Section 12(1)(k) of Cap. 301 but always follow the event unless for good reasons otherwise ordered. We have no reason to deny costs to the Respondents.

34. Since the reference herein raises the same issues with the application, this ruling shall equally apply to it under Section 12(4) of Cap. 301, Laws of Kenya.

35. In conclusion, the following final orders commend to us in this matter-a.The tenant’s reference and application dated 6th October 2023 are hereby dismissed with costs.b.The Landlord is entitled to rent arrears of Kshs 4,000/= per month with effect from 1st June 2023 in addition to any other unpaid rent for the suit premises in line with the notice of increment of rent dated 28th March 2023. c.The Respondents are awarded costs of the case assessed at Kshs 30,000/= against the tenant.It is so ordered.

DATED, SIGNED & VIRTUALLY DELIVERED THIS 1STDAY OF MARCH 2024HON. GAKUHI CHEGE - PANEL CHAIRPERSONHON. JOYCE OSODO - PANEL MEMBERRuling read in absence of the parties who were duly notified.