[2022] KEBPRT 133 (KLR)

Ombogo v Catholic Church (Tribunal Case E007 of 2022) [2022] KEBPRT 133 (KLR) (Civ) (13 May 2022) (Ruling)

Neutral citation: [2022] KEBPRT 133 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E007 of 2022

Gakuhi Chege, Chair

May 13, 2022

Between

Julius Oteno Ombogo

Applicant

and

Catholic Church

Respondent

Ruling

1. The tenant moved this Tribunal vide a reference dated 19th January 2022 complaining that he had been served with a termination letter on 15th December 2021 and was forcefully evicted on the 15th January 2022 from the premises.

2. The Tenant also filed a notice of motion dated 18/1/2022 seeking in material part a mandatory injunction directing the Landlord to unconditionally reinstate him into the possession of the suit premises pending hearing of the suit. The application is supported by the tenant’s affidavit of even date and the grounds on the face thereof.

3. The applicant is the Respondent’s tenant at Tumsifu Centre (Goan) from the year 2004 wherein he has been conducting business. On 15th December 2021, the Respondent served the applicant with a notice to vacate the business premises within Thirty (30) days and look for alternative space.

4. The Respondent also demanded payment of 36 months rent arrears within the same period. On 15th January 2022, the tenant was evicted from the suit premises despite the notice to vacate having not been drawn in the prescribed form.

5. The application is opposed through the replying affidavit of Rev. FR. Moses Nicholas Omollo sworn on 26th January 2022 wherein it is deposed that in absence of a plaint, the proceedings are wanting in law.

6. It is further deposed that there was no tenancy agreement between the parties and that no illegal or unlawful notice was issued to the applicant and his eviction was lawful and in line with the rules and regulations for tenants in occupation of the premises.

7. The applicant is accused of having been conducting the business of selling liquor and other illicit brews where all manner of criminal activities were taking place against the rules and regulations for tenants in occupation of the premises on grounds used by the church for sacred events such as ordination of priests.

8. On 21st January 2022, interim orders of injunction were issued in favour of the tenant and the matter scheduled for hearing inter-partes on 3/2/2022. On the said date, counsel for the Respondent indicated that the premises had been opened. This was disputed by the applicant’s counsel who sought leave to file a further affidavit which was granted.

9. The applicant filed a further affidavit sworn on 15th February 2022 attaching photographs of the locked gate to the premises and disputing that his suit was incompetent. He also disputes that he was conducting an illegal business stating that he was running a gymnasium which was duly licensed by the County Government of Kisumu.

10. The matter was ordered to proceed by way of written submissions and both parties complied. I shall consider the submissions together with issues for determination.

11. The following issues arise for determination.a.Whether the notice issued by the landlord is valid.b.Whether the tenant is entitled to an order of mandatory injunction against the landlord as prayed.c.Who is liable to pay costs?

12. Section 4(1) of Cap. 301Laws of Kenya provides as follows:-“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”.

13. Section 4 (2) of the same Act provides thus:-“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 in the prescribed form”.

14. Section 4(4) thereof stipulates that no tenancy notice shall take effect until such date not being less than two months after receipt thereof by the receiving party as shall be specified therein.

15. Section 4(6) of the Act stipulates that a tenancy notice shall not be effective for any of the purposes of the Act unless it specifies the grounds upon which the requesting party seeks the termination and requires the receiving party to notify the requesting party in writing within one month after the date of receipt of the notice whether or not he agrees to comply with the notice.

16. The tenant’s counsel submits that the notice to vacate marked “EOA-2” gave Thirty (30) days to the applicant and as such does not meet the threshold espoused in Section 4(2) and (5) of Cap. 301. It does not conform to the provisions of Section 4(4) as well and is as such ineffective.

17. On the other hand, the landlord’s counsel contends that the notice was not in the applicant’s name and as such he cannot claim to have been issued with an invalid or unlawful notice to vacate.

18. It is the landlord’s submission that the notice to vacate is not unlawful or invalid since the applicant had failed to perform his obligation to pay rent since 2015 thereby occasioning the Respondent loss and damage. It was therefore legal for the Respondent to ask the applicant to vacate the suit premises.

19. I have looked at the impugned notice and I agree with the tenant’s contention that the same is in total contravention of all the provisions of Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap. 301, Laws of Kenya.

20. I am fortified in this regard by the decision in the case of Fredrick Mutua Mulinge t/a Kitui uniform – vs- Kitui Teachers Housing Cooperative Society Limited (2017) eKLR which followed several other decisions including that of Lall – vs- Jeypee Investments Ltd (1972) EA where it was held as follows:-“The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is an especially enacted piece of legislation which creates a privileged class of tenants for the purposes of affording them the protection specified by its provisions against ravages of predatory landlords. Such protection can only be fully enjoyed if the provisions of Act are observed to the letter otherwise the clearly indicated intention of the legislature would be defeated. In order to be effective in this fashion, the Act must be construed strictly no matter how harsh the result.The landlord and Tenant Act laid down a code which parliament intended to be followed and if a landlord does not give notice of termination as prescribed the notice will be ineffectual. This may seem a technical and unmeritorious defence but there is no doubt that the court has no power to dispense with these time limits if the defendant chooses to object at the proper time. This is an Act which requires in so far as the giving of the notice is concerned, absolute and complete not merely substantive compliance with its peremptory provisions”.

21. Guided by the said decision, I am satisfied that the notice served upon the application is invalid and ineffectual. As such the purported enforcement thereof by way of closure of the tenants business is an affront to the rule of law and cannot be countenanced by a court of equity.

22. The Respondent contends that the tenant failed to pay rent since 2015 but there is a legal way of enforcing payment of rent and closure of a tenants business premises is not one of them.

23. On the issue as to whether the tenant is entitled to an order of mandatory injunction against the landlord as prayed, I shall seek guidance from the court of appeal decision in the case ofKenya Breweries Limited & Another – vs- Washington O. Okeyo (2002) eKLR at page 2/3 where the learned Judges of appeal cited with approval volume 24, Halsbury’s Laws of England, 4thEdn paragraph 948 as follows:-“A mandatory injunction can be granted on an interlocutory application as well as at the hearing but in the absence of special circumstances, it will not be granted. However, if the case is clear and one which the court thinks it ought to be decided at once or if the act done is a simple and summary one which can be easily remedied or if the defendant attempted to steal a march on the plaintiff…………….a mandatory injunction will be granted on an interlocutory application”.

24. Having found that the Respondent closed/locked the applicant’s business on the basis of an invalid termination notice, I have no doubt in my mind that this is a fit case for a mandatory injunction (see also the case of Aikman – vs- Muchoki & Others (1982) eKLR on the same issue).

25. As regards costs, they are in the discretion of the trial court but always follow the event. I have no reason to deny the applicant costs of the application and reference.

26. I therefore proceed under section 12(4) of Cap. 301 to make the following orders:-i.A mandatory injunction be and is hereby issued against the Catholic Archidiocese of Kisumu by itself, servants, agents or any other person acting under it directing immediate re-opening of the tenant’s/applicant’s business premises situate at Tumsifu Centre (Goan).ii.The OCS, Kisumu Central Police Station shall enforce compliance with these orders.iii.In the event of the landlord’s failure to re-open the business premises as directed, the tenant/applicant is hereby authorized to break into the business premises forcibly with the assistance of OCS Kisumu Central Police Station after 48 hours of service of the order upon the landlord.iv.The reference herein is marked as allowed since it raises the same issues as the application.v.The landlord is granted leave to serve a proper notice under section 4(2) of Cap. 301 Laws of Kenya as the one served is invalid and ineffectual in law.vi.The tenant is awarded costs of Kshs.30,000/- against the landlord to be deducted from the rent payable in respect of the suit premises if not paid within Thirty (30) days hereof.

It is so ordered.RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 13TH DAY OF MAY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES TRIBUNALIn the presence of:Ruling read in absence of the parties who had been duly notified through the e-filing portal.HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES TRIBUNAL