[2021] KEBPRT 390 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 968 OF 2020 (NAIROBI)

PAUL KARANJA NJERI......................................TENANT/APPLICANT

VERSUS

STEPHEN WAWERU NJERI.....................LANDLORD/RESPONDENT

RULING

1. By a motion dated 3rd February 2021, the Tenant/Applicant is seeking in material part for a temporary injunction to restrain the Landlord/Respondent from enforcing the illegal termination of tenancy or in any way interfering with the quiet use of the rented premises on L.R. NO. Thika Municipality Block 15/592 pending the hearing and determination of the Reference.

2. The application is supported by the Tenant’s affidavit of even date in which he deposes that on 5th December 2020, the Landlord issued a letter informing him to vacate the premises. The letter is annexed to the application.

3. The said letter gave the Tenant 7 days and the Tenant contends that the same is unilateral, contrary to the law and infringes his rights as tenant.

4. The Tenant deposes that the Landlord has subsequently issued verbal threats to vacate the premises which has caused disruption of business through loss of customers and denial of peaceful enjoyment of the same.

5. In response to the application, the Respondent filed a replying affidavit sworn on 28th February 2021 in which he deposes that in the month of September 2020, he informed all his tenants including the Respondent (sic) that he intended to renovate and/or improve the premises.

6. He further deposes that the Applicant refused to vacate despite signing and undertaking to vacate like the other tenants.

7. The Landlord has annexed copies of agreements entered into with the Tenants with effect from 1st December 2020 to enable “upstairs storey construction”. The agreements are dated 3rd September 2020.

8. It is the Respondents case that the Applicant has been hostile to him and other tenants and that no one was willing to take up tenancy while he was around.

9. The Applicant is said to have assaulted one John Kikanai Kasu which was reported to Makongeni Police Station.

10. The Respondent deposes that the interim orders given herein ought to be vacated as the same have affected his plans to develop the house indefinitely although he continues to pay loans and is likely to face problems with financiers if his loan repayment schedule is affected.

11. According to the Respondent, he is entitled to develop the property and the Applicant cannot stop him from dealing with the property having given him ample time to vacate therefrom.

12. The Respondent therefore prays that the Applicant be ordered to vacate the premises not later than 30th March 2021 to avert financial crisis as the Respondent was a retired civil servant whose only source of livelihood is the said house.

13. The Respondent contends that the Applicant has greatly devalued the property from its original position without consent leading to loss.

14. The Respondent filed a further affidavit sworn on 7th July 2021 after filing submissions by both parties.

15. The said affidavit was filed without leave and attaches a valuation report by Solomon and Associates Co. Ltd dated 12th March 2021.

16. Having been filed without leave, the same is expunged from the court record. In any event, it adds no value to the case as I have no application for orders to compensate the alleged loss before me.

17. I have considered the pleadings and the submissions by both parties and the only issue that falls for determination is whether the application ought to be granted or refused.

18. Section 4(1) of Cap. 301 provides that no controlled 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 section 4(2) of the Act.

19. Section 4(2) thereof provides that a Landlord who wishes to terminate a controlled tenancy or 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.

20. I have looked at the pleadings together with documents annexed thereto and make the following findings:-

(i) The letter dated 5th December 2020 issued to the tenant by the Landlords advocate gives the reason for requiring vacant possession to be the Tenant’s nuisance to the neighbours and/or other tenants.

(ii) It seeks to terminate the tenancy within a period of seven (7) days.

(iii) The said notice is not in the prescribed form and does not refer to any agreement reached between the Landlord and the Tenant.

(iv) The purported agreement to vacate dated 3rd September 2020 is not attested by an independent witness and given the alleged non cordial relationship between the Landlord and the Tenant may not be relied upon as a basis for granting vacant possession. It does not comply with section 3(3) of the Law of Contract Act, cap 23, Laws of Kenya.

(v) No evidence has been tendered by the Landlord to prove that he intends to develop the suit premises as alleged.

(vi) No evidence of any financial facility having been advanced to the Respondent has been adduced before this Tribunal.

(vii) In the premises, I hold that the Tenant’s application has merit and proceed to make the following orders:-

(a) A temporary injunction be and is hereby issued against the Respondent from enforcing the illegal termination of the tenancy or in any other manner from interfering with the Tenant’s quiet use of the premises erected on L.R. NO. Thika Municipality Block 15/592 pending hearing and determination of the Reference.

(b) The O.C.S, Makongeni Police Station or the in-charge of Administration police within the area shall ensure compliance with the orders herein.

(c) The Tenant/Applicant shall clear any rent in arrears and continue paying rent as and when the same falls due and payable in the pendency of hearing and determination of the Reference.

(d) The Tenant/Applicant shall have the costs of this application.

It is so ordered.

DATED, SIGNED & DELIVERED THIS 23RD DAY OF JULY 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Kangiri for the Landlord

Warutere for the Tenant