[2024] KEBPRT 188 (KLR)

Rimberi v Charo; Maabi t/a Murphy Auctioneer (Interested Party) (Tribunal Case E235 of 2023) [2024] KEBPRT 188 (KLR) (6 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 188 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E235 of 2023

P Kitur, Member

February 6, 2024

Between

Doris Rimberi

Tenant

and

Samuel Karisa Charo

Landlord

and

E.M Maabi/T/A Murphy Auctioneer

Interested Party

Ruling

1. Parties And Representatives 1. The applicant Doris Rimberi is the Tenant and having rented out the premises known as the Hotel from the Landlord. (hereinafter known as the ‘Tenant’)

2. The tenant acts in Person.

3. The respondent Samuel Karisa Charo is the Landlord and the proprietor of the suit property known as Hotel (hereinafter known as the ‘Landlord’)

4. The interested part herein, E.M. Maabi T/A Murphy Auctioneers is the Auctioneer that was Appointed by the landlord to effect recovery in a distress for rent matter.

5. The firm of M/S Bunde Mangaro & Co Advocates represents the Respondent and Interested party in this matter.

2. The Dispute Background 6. The tenant avers that she filed a reference dated November 16, 2022, protesting the issuance of a notice to terminate the lease by the landlord.

7. The tenant avers that thereafter, the landlord instructed the interested party herein to distress for rent vide proclamation dated May 4, 2023 by the auctioneers despite the fact that the matter is still pending in court and the same is yet to be heard and determined.

8. The tenant was apprehensive that the Landlord through the Auctioneers, having proclaimed her goods, would proceed to sell the same by public auction before the conclusion of this matter herein.

9. As a result of the above, the tenant filed a notice of motion application dated May 11, 2023 seeking orders of stay of execution of the proclamation dated May 4, 2023 by Murphy Auctioneers, pending the hearing and determination of the Application as well as an order restraining the Landlord, Auctioneers, their agents and servants from attaching and removing goods belonging to the Tenant.

10. The landlord in response to the tenant’s application filed a replying affidavit dated June 19, 2023 in which he averred that on or about July 9, 2022, he entered into an agreement with the tenant to let the premises known as the Hotel for a monthly rent of Kenya shillings six thousand only (Kes 6,000/=) and two Months deposit payable at start of the tenancy.

11. That as per the agreement, the Tenant paid the sum of Kenya shilling twelve thousand only (Kes 12,000/=), which promise was not honoured and that the Tenant only paid the sum of Kenya shillings six thousand (Kes 6,000/=) after a period of four months.

12. That the tenant failed to honour the obligation in the tenancy agreement and is in arrears for 9 months. Consequently, the landlord issued a notice of termination of tenancy as per section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments Act(cap 301).

13. The tenant denies issuance or service of notice to terminate lease upon her prior to filing the reference before this tribunal.

3. List Of Issues For DeterminationThe issues raised for determination are as follows;a.Whether there is proper notice to terminate and if the reference before this tribunal is properly instituted.b.Whether the tenant is in arrears and hence whether the landlord is entitled to distress for rent.

4. Analysis And FindingsWhether there is proper notice to terminate and if the reference before this tribunal is properly instituted

14. The tenant filed a reference dated November 15, 2022 challenging the landlords notice to terminate the tenancy agreement between them.

15. On the other hand, the landlord, in his replying affidavit, denied having issued the termination notice to the Tenant that was relied upon by the tenant in her reference dated 15th of November 2022.

16. The landlord avered that the notice complained of by the tenant was allegedly issued to one James Karemi, who is not the tenant herein and who chose not to object to the alleged Notice.

17. In her submissions, the tenant avered that she was given a verbal one-day notice on the October 31, 2022 by the landlord, to vacate the business premises which prompted her filing of the reference.

18. It was the landlord’s contention that the reference herein is improperly before this honorable tribunal.

19. I am guided by the provisions of cap 301 which stipulate under section (1) in A very clear language that a controlled tenancy shall not terminate or be terminated and no term shall be altered otherwise than in accordance with specified provisions of the Act.

20. Section 4 of cap 301 further provides as follows:Termination of and alteration of terms and conditions in, controlled tenancy (1) 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.(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.

21. In view of the foregoing, it is my considered view that there is no proper notice on record issued to the tenant, in the prescribed form, prior to filing of the instant suit and therefore the tenancy was not properly terminated.

22. I have also taken note that the landlord, in his replying affidavit and Submissions made reference to a termination notice dated April 19, 2023, which was issued after the present suit was instituted, the same however not challenged by the tenant, cannot be construed to form the basis of this matter.

23. It is thus my considered view that the tenancy relationship still stands.Whether the tenant is in arrears and hence whether the landlord is entitled to distress for rent.

24. The issue of the outstanding arrears was brought about by the Landlord who stated that he has not been paid any rent since the payment on October 11, 2022 to the time of filing of his replying affidavit. He further deposed that he only received two months’ deposit payment of 12,000/= on or about 9th day of July 2022 and second payment of Kes 6,000/= on October 11, 2022.

25. The tenant in her notice of motion application did not controvert her indebtedness and only objected to the issuance of the proclamation stating that the same was done pre-maturely since the Landlord did not exhaust all legal remedies available.

26. No evidence of payment of rent has been tendered by the tenant.

27. Having considered that the tenant has been in occupation of the Business premises since taking the possession on July 9, 2022 without interference from the Landlord, I therefore proceed to order as follows;

Ordersa.The upshot is that the application dated May 11, 2023 partially succeeds and the tenancy shall progress on the following terms:I.The tenant is to pay any outstanding arrears no later than March 31, 2024 and in default of which, the landlord shall be at liberty to levy for distress and take back vacant possession if he so wishes.II.The tenant is at liberty to file a fresh reference with regard to the notice of termination of tenancy issued subsequent to the institution of these proceedings.b.The complaint is settled in those terms.c.Each party shall bear their own costs.

HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon P. Kitur this 6th February 2024 in the presence of Doris Rimbere the Tenant and in the absence of the Landlord and Interested Party.HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNAL