[2021] KEBPRT 213 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. E141 OF 2021

(NAIROBI)

RICHARD MUKULA MUTHOKA

T/A NZAMBANI PHARMACY……………………....……………TENANT/APPLICANT

VERSUS

ROSE KAVITHE MUTIA……………………….....…………LANDLADY/RESPONDENT

RULING

A. Parties and Representatives

1. The Tenant Richard Mukula Muthoka rented space on LR 4096/542 Kitui for the business (hereinafter known as the ‘tenant’)

2. The firm of the Munyoki Junior Advocates represent the Tenant/Applicant in this matter. munyokijunior@gmail.com

3. The Respondent is the Landlady and owner of LR No. 4096/542 rented out to the tenants (hereinafter the Landlady).

4. The firm of Sethna Atonga & Co. Advocates represent the Landlord/Respondent in this matter.satongaadvocates@gmail.com

B. The Dispute Background

5. On 1st February 2011 the Landlord and the Tenant entered into a tenancy agreement which was to commence on 1st February 2012 for a term of five years.

6. The Tenant received a termination notice from the Landlord on 22nd February 2021 which required them to give the Landlord vacant possession on or before 22nd May 2021.

7. After receipt of the notice of termination Tenant claims that they received constant harassment from the Landlord’s children.

8. On the 19th May 2021 the Tenant moved this Tribunal by way of reference dated 19th May 2021 and notice of motion under certificate of urgency filed on 19th May 2021 under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Tenant was seeking amongst other orders that pending the hearing and determination of the application that the tribunal order the Landlord/Respondents be temporarily prohibited and restrained from harassing and unlawfully evicting the Tenant from the premises. Further that the Landlords/Respondents be temporarily restrained from unlawfully interfering with the use and occupation of the premises.

9. On 24th May 2021the Tribunal ordered that the Landlord/Respondent be temporarily prohibited and restrained from harassing and unlawfully evicting the Tenant from the premises as well as that the Landlord/Respondent be temporarily prohibited and restrained from unlawfully interfering with the Tenant’s use and occupation of the premises.

C. Jurisdiction

10. The jurisdiction of this Tribunal is in dispute.

D. The Tenant’s Claim

11. The Tenant filed a reference dated 19th May 2021 together with a notice of motion application under certificate of urgency and supporting affidavit dated 19th May 2021which pleadings form the basis of this claim.

12. The Tenant obtained restraining orders as against the Landlord on 24th May 2021 and to date the Landlord is still restrained from harassing and unlawfully evicting the Tenant from the premises as well as unlawfully interfering with the Tenant’s use and occupation of the premises.

E. The Landlord’s Claim

13. The Landlord has filed a replying affidavit dated 21st June 2021 and sworn by the landlord but has however failed to file written submissions.

14. The Tenant filed submissions on 20th August 2021 and the matter was fixed for ruling on 1st October 2021.

F. Matters Not in Dispute.

15. It is not in dispute that there existed a tenancy agreement between the Landlord and the Tenant.

G. List of Issues for Determination

16. The issues raised for determination are as follows;

a) Whether the Tribunal has jurisdiction under section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya to investigate the complaint raised by the Tenant?

b) Whether the termination notice dated 23rd February 2021 issued by the Landlord was valid?

H. Analysis and Findings

Whether the Tribunal has jurisdiction under section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya to investigate the complaint raised by the tenant?

17. Section 12 (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenyaprovides that;

“In addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the Landlord or the Tenant, and may make such order thereon as it deems fit”

18. The above provision allows the Business Premises and Rent Tribunal to in addition to the powers conferred upon it by the Act investigate on any other matters that may be raised in relation to a controlled tenancy.

19. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya Act at section 2 defines a controlled tenancyas;

a tenancy of a shop, hotel or catering establishment—

(a) which has not been reduced into writing; or

(b) which has been reduced into writing and which—

(i) is for a period not exceeding five years; or

(ii) contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof;

21. In this case the Landlord claims that as it stands there exists no tenancy agreement between her and the Tenant.

22. The landlord annexed in their replying affidavit a copy of the tenancy agreement marked RKM 1 the which states that they entered into a tenancy agreement on 1st February 2012 for a period of five years which lapsed on 1st February 2017. The Landlord alleges that the tenancy agreement expired.

23. After the tenancy agreement expired the Tenant remained in the premises and continued to pay rent. The Tenant claims that the tenancy reverted to being a month to month tenancy.

24. The main question for determination by the Tribunal is whether there is a controlled tenancy between the tenant and the Landlord as per the definition under section 2of theLandlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya.

25. Section 12(1)(a) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya provides that

A Tribunal shall, in relation to its area of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of this Act, and in addition to and without prejudice to the generality of the foregoing shall have power—

(a) to determine whether or not any tenancy is a controlled tenancy

26. By virtue of this provision the Tribunal has the jurisdiction to investigate whether the relationship between the Tenant and the Landlord satisfies all the requirements to be deemed as a controlled tenancy.

27. In the case of Re Hebtulla Properties Ltd[1979] eKLR it was stated that:

“The position as to the Tribunal’s powers could not be clearer than the act which creates it has put it. Section 12(1) of the Act expressly says:

The tribunal shall, in relation to its area jurisdiction, have power to do all things which it is required or empowered to do by or under the provisions of this Act

Thus anything not spelled out by the Act as to be done by the tribunal is outside its area of jurisdiction. It has no jurisdiction except for the additional matters listed under section 12(1) (a) to (n)”

28. After expiry of the tenancy agreement the Tenant remained on the premises and kept paying rent which the Landlord was not opposed to. The tenancy agreement between the parties was not renewed however the Tenant kept enjoying possession of the premises while the Landlord continued acquiring rent for the same.

29. In the case of Wonderland Casino Ltd Vs University of Nairobi [2008] eKLRthe judge explained the concept of a holding over Tenant as was explained in Halsbury’s Laws of England 4th Edition Vol. 27 pg. 37and stated that;

“holding over. The tenancy arising by implication in favor of a tenant who holds over after the expiration of his lease and pays rent is only deemed to be on the terms of the old lease in the absence of evidence of a different understanding. The question is one of fact and, in the absence of any facts excluding an implied agreement between the parties to hold upon the terms of the old lease so far as they are applicable to an annual tenancy, the law will imply a new agreement to that effect between them. Where nothing has been said by landlord or tenant with reference to any terms of negotiations after the expiration of the old lease with regard to the terms of a tenancy, it is a question of fact whether there has been a consent by both parties to a continuance of the old tenancy and, if so, upon what terms. The terms may be implied from the parties’ relationship, as in the case of a Landlord and Tenant of an agricultural holding, from the use of certain words, such as the word “demise”, and from the surrounding circumstances existing at the time when the parties consent to the continuance of the tenancy; and what terms are to be implied is in each case an inference of fact.”

30. From the above the conduct of the Tenant and the Landlord in this case gave rise to an implied tenancy where the Tenant became a holding over Tenant. The tenancy relationship was implied from there being no opposition from the Landlord as to the Tenant remaining in the premises until 23rd February 2021 when the Landlord issued a termination notice to the Tenant the Landlord also kept receiving rent from the Tenant. These Acts can be construed to be implied terms of the implied agreement.

31. As a result, the relationship between the Tenant and the Landlord qualifies to be deemed as a controlled tenancy. Further the relationship satisfies the definition under section 2 (a) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya of a controlled tenancy that has not been reduced into writing

32. The preamble to the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, reads as follows: -

An Act of Parliament to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected there with and incidental thereto.”

33. The tribunal’s construction of the title of this Act together with the content of the preamble (supra) is that, this Act deals specifically with the Landlord and Tenant relationships in relation to structures standing on the land. The mandate to resolve disputes arising from dealings in relation to such structures is exclusively vested in the Business Premises and Rent Tribunal in terms of section 12 of the Act.

34. Having determined that there is a controlled tenancy, I find that the Tribunal is clothed with jurisdiction to investigate and determine the issues raised in this matter.

Whether the termination Notice dated 23rd February 2021 issued by the Landlord is valid?

35. It is not in dispute that the Landlord issued a notice of termination of tenancy of three months on 23rd February 2021 citing reasons that she was required to carry out substantial repairs on various structures in the premises and such repairs cannot be done with the tenant in the premises.

36. Termination of a controlled tenancy is provided for under section 4 of the Landlord and Tenant (shops, Hotels and Catering Establishments) Act. The Section 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 provisions of this Act”

37. Having determined that there is a controlled tenancy between the two parties the notice is required to comply with the requirements of Section 4 (2) and (4) respectively which provide that;

4(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(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.

38. The tenancy notice issued by the Landlord gave a notice of 3 months to the Tenant as required by the provisions above.

39. Section 4(5) of theLandlord and Tenant (Shops, Hotels and Catering Establishments) Act requires that after receipt of the notice the receiving party proceed to give a response within one month as to whether they intend to comply with the notice or not.

40. The tenant, who was the receiving party in this case did not inform the landlord that they did not intend to comply with the notice. They instead proceeded to file a reference at this Tribunal on 19th May 2021.

41. From the foregoing I find that the notice issued by the Landlord was issued in accordance with the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act and as such it is valid.

Reasons for eviction of the tenant from the premises

42. Based on the determination above on the upholding of the notice of termination it is important to interrogate the reason why the tenant ought to vacate the premises.

43. The Landlord contends that the Tenant should vacate the premises since the Landlord was issued with a mandatory statutory notice dated 25th of March 2021 from Kitui County Government requiring her to carry out repairs in the premises. The repairs included repainting of the entire building, repairing chipped floors, and replacing the roofing and the ceiling of the premises.

44. The tenant in their written submissions has questioned the validity and authenticity of the statutory notice issued by the County Government on the grounds that it has not been duly executed

45. Section 83 (1)(b) and (c) of the Evidence Act provides that

(1) The court shall presume to be genuine every document purporting to be a certificate, certified copy or other document which is

(b) substantially in the form, and purporting to be executed in the manner, directed by law in that behalf

(c) purporting to be duly certified by a public officer.

46. The above provisions provide that every public document produced as evidence shall be presumed genuine and any person alleging otherwise must prove the same. The burden of proof shifts to the person questioning the validity of the documents

47. In this case the Tenant in their written submissions alleged that the statutory notice was not duly executed. They however failed to present evidence to prove the same and as a result they failed to discharge their burden.

48. After inspection of the statutory notice annexed this Tribunal finds that the document was duly executed. The document contains the signature of Madam Hellen Kitula. This is sufficient to render the document genuine and valid. The Tenant has failed to provide any evidence to the contrary that the said Hellen Kitula is neither an employee of Kitui or has no such authority to issue such a notice.

49. The Tribunal is also of the view that the repairs that the statutory notice requires the landlord to undertake are crucial to the structure of the premises and cannot be conducted while the Tenant is present at the premises. It would pose as a risk both to the property of the Tenant’s business as well as to the Tenant himself. As a result, it is the decision of the Tribunal that the Tenant should vacate the premises.

I. Orders

a) The Tenant’s application dated 19th May 2021 is dismissed. The upshot is that the Tenant’s reference dated 19th May 2021 is hereby also compromised on similar terms.

b) Tenant to vacate within 60 days subject to payment of rent of Kshs. 52,000/- in the next 7 days failure to which the Landlord can reclaim the suit premises through break in with the assistance of the Officer Commanding Station Kitui.

c) Any outstanding arrears to be discussed/agreed upon and settled by the Tenant.

d) Each party shall bear their own costs.

HON. A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this1st day of October 2021 in the presence of Atonga for the Landlady and Munyoki for the Tenant.

HON. A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL