[2021] KEBPRT 393 (KLR)
Both the landlord's notice to increase rent and the notice to terminate tenancy failed to comply with the mandatory requirements of section 4 of Cap 301. Neither notice was in the prescribed form, neither stated the required reasons or period, nor required the tenants to indicate within one month whether they...
Source-derived case information.
- Citation
- [2021] KEBPRT 393 (KLR)
- Parties
- Applicant: Ronald Mburu; Applicant: Felix Kilungya; Respondent: David Ndonye
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E042 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- Tenants' application allowed; landlord's notices declared invalid; injunctive relief granted.
- Legal Topics
- Controlled Tenancy, Rent Increase Notices, Eviction Procedure, Statutory Notice Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ronald Mburu
Applicant
Felix Kilungya
Applicant
David Ndonye
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the landlord's notice to increase rent and/or terminate tenancy complied with the mandatory requirements of Cap 301, section 4.
- 2 Whether the landlord was entitled to increase rent or evict the tenants without proper statutory notice.
- 3 Whether the tenants were entitled to injunctive relief restraining the landlord from interfering with their possession or increasing rent.
Ratio Decidendi
Both the landlord's notice to increase rent and the notice to terminate tenancy failed to comply with the mandatory requirements of section 4 of Cap 301. Neither notice was in the prescribed form, neither stated the required reasons or period, nor required the tenants to indicate within one month whether they intended to comply. The tribunal found that the tenancy was a controlled tenancy, and strict compliance with statutory notice requirements was mandatory. As both notices were defective and invalid, the landlord could not lawfully increase rent or terminate the tenancy based on them. The tenants were therefore entitled to protection from eviction and arbitrary rent increases, and the...
Court Disposition
Tenants' application allowed; landlord's notices declared invalid; injunctive relief granted.
Orders
- The landlord is restrained from interfering with the tenants' quiet possession of shops Nos 4, 6, and 7 at Gracious House, Kitengela, Kajiado County pending determination of the complaint.
- The landlord is restrained from illegally or arbitrarily raising rent pending determination of the complaint.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
TRIBUNAL CASE NO E042 OF 2021 (NAIROBI)
RONALD MBURU.................TENANT/1ST APPLICANT
FELIX KILUNGYA...............TENANT/2ND APPLICANT
VERSUS
DAVID NDONYE..................LANDLORD/RESPONDENT
RULING
The Tenant/Applicants’ complaint against the Landlord dated 21st April 2021 is that the Landlord has arbitrarily and illegally increased rent astronomically and has illegally threatened to evict the Tenants from their business premises situated in the building known as Gracious House Kitengela contrary to the provisions of Cap 301 of the Laws of Kenya.
The Tenants’ application has sought for the following prayers (paraphrased);
1. Spent
2. Spent
3. That the Landlord be restrained by orders of this Tribunal from in any way interfering with the Tenant’s quiet possession of the suit premises known as shops Nos 4, 6 and 7 situated on that building known as Gracious House, Kitengela, Kajiado County pending the hearing and determination of this complaint/reference.
4. That the Landlord be restrained from illegally and/or arbitrarily raising rent pending the hearing and determination of this complaint.
5. The OCS Kitengela does assist in enforcement of the orders and maintenance of peace and order.
6. Costs.
The grounds upon which the application is brought and the affidavit in support thereof may be summarized as follows;
1. That the Landlord has threatened to illegally increase rent and evict the Tenants.
2. That the Landlord has not issued the Tenants with any notice as provided for under the law.
3. That the Tenants have no rent arrears.
The notice to increase rent complained of is the one annexed to the Tenants’ affidavit and marked BM2. I have seen the same. It does not meet the requirements of section 4 of Cap 301 which requires the notices to alter terms and conditions to be in the prescribed form under the Act. The notice also fails to meet the requirements ofsection 4(4) and section 4(5) of the Act. It does not state the reasons for the rent increment, does not require the Tenant to notify the Landlord within one month whether he intends to comply with the notice and the period of the notice is also not specified.
There being no evidence that this lease agreement between the parties herein was in writing, it is assumed that the tenancy herein is controlled tenancy. The giving of the proper notice under section 4(2) of Cap 301 where a Landlord wishes to terminate a tenancy or to alter the term thereof to the detriment of the Tenant is mandatory. I find that in this case, the notice to increase rent does not meet the threshold set out under section 4(4) and section 4(5) of Cap 301. It is invalid and of no effect.
The Landlord in his submissions state that he issued to the Tenant a valid notice to terminate the tenancy and that the said notice was in the nature of one prescribed by law. That indeed the Landlord served the Applicants with a three months’ notice to vacate. The Landlord also states that his notice provides the reason for termination. On the need to undertake substantial renovations upon the premises.
The parties to this dispute are not in agreement as to which notice was issued. The Tenants refer to the notice to increase rent and a threat to illegally evict without notice while the Landlord refers to his notice to terminate the tenancy on account of the need to carry out substantial renovations on the premises. I have looked at the notice referred to by the Landlord and annexed to his submissions. It is indeed a three months’ notice running from 28th January 2021 to 28th April 2021. The reason for the notice is that the owner needs to renovate the premises.
This notice too is not in the form prescribed under the Act at section 4(2). It does also not meet the requirements of section 4(5) of Cap 301 in its failure to require the Tenant herein to indicate to the Landlord within one month of the receipt of the notice whether he intends to comply with the notice. It is a defective notice and of no effect.
I therefore find that irrespective of the differences in the notices the parties here have sought to refer to both notices are invalid and consequently of no effect.
In the circumstances, I do find that the Applicant’s complaint and application have merit. I allow the Tenants’ application dated 21st April 2021 in terms of prayers 3, 4, 5 and 6 of the said application.
Having declared the notices herein as of no effect, I also allow the Tenants’ complaint dated 21st April 2021 in terms of the above orders.
HON. CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL
RULING READ AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 30TH DAY OF JULY, 2021 IN THE PRESENCE OF MR KIVUVA FOR THE LANDLORD AND IN THE ABSENCE OF THE TENANTS.
HON CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL