[2022] KEBPRT 83 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E239 OF 2021 (NAIROBI)

ROSEANNE WANJIRU MWANGI......................................................APPLICANT/TENANT

VERSUS

HANNAH MUTURI................................................................................................LANDLADY

KANDAYS LIMITED.....................................................................................................AGENT

RULING

1. The Tenant through a motion dated 25th June 2021 is seeking for restraining orders against the Respondents from interfering with her tenancy in shop number G3, Tushauriane area, Kwa Matunda stage, opposite Equity Hotel in Kayole.

2. The application is supported by the tenant’s affidavit of even date and the grounds on the face thereof. The tenant runs a boutique shop in the suit premises having inherited the same from her late mother who died on 30th March 2020 as per annexture “RAM-2’. The tenant is a beneficiary of her late mother’s estate as the only child. She took over the management of the shop after mother’s death a fact she communicated to the agent of the landlord who accepted her as the new tenant pursuant to which they gave her a summary of rent arrears as per annexture ‘RAM-3’.

3. The tenant paid Kshs.20,000/- and was issued with a receipt marked ‘RAM-4’. On 17th April 2021, the agent disconnected electricity to the premises illegally for a period of 2 weeks. The matter was reported to the local administration who compelled the agent to reconnect the same.

4. On 22nd June 2021, the landlady served a notice to vacate upon the tenant with immediate effect on the grounds that she did not recognize her as a lawful tenant of the suit premises and as such was a trespasser.

5. The landlady further deposited a pile of sand at the entrance of the premises thereby interfering with free ingress and egress thereto as per annexture “RAM-6”.

6. The application is opposed through the 1st Respondent’s replying affidavit sworn on 29th September 2021 wherein it is deposed that she does not recognize the applicant as her tenant as the agreement was with the late Jane Lucy Njeri Mwangi. There was an implied term that the premises would revert back to her in the event of natural occurrence.

7. The applicant took over the management of the shop without any communication to the landlady or her agents according to the 1st Respondent. The applicant is alleged to have become very audacious and impertinent upon inquiries leaving no room for further communication.

8. According to the landlady, she had informed the agent that she intended to take over possession of the shop to renovate and subdivide it.

9. It is confirmed that the applicant enquired on rent arrears due for the month of April 2021 which was provided and paid on 15th April 2021 being rent for that month and arrears left behind by her deceased mother. The landlady presumed that she would vacate by May 2021.

10. It is denied that electricity was disconnected by the agent and the landlady attributes the same to a technical issue which was later fixed.

11. The landlady deposes that the applicant had been rude, abusive and full of contempt to her and agent and the notice to vacate was her last course of action after numerous attempts to get her to vacate the premises.

12. The landlady admits that there was a sand deposit which was intended for construction of the upper floor.

13. Simultaneously with the motion under discussion, the tenant filed a reference dated 25th June 2021 against the landlady and agent complaining that:-

“she has illegally issued a notice to vacate without following the due process of the law”.

14. As the said reference raises the same issues pleaded in the application, I shall deal with both together.

15. The application was directed to be disposed of by way of written submissions and both parties complied.

16. I intend to consider the submissions together with the following issues for determination:-

(a) Whether there exists a landlord/tenant relationship between the 1st Respondent and the Applicant.

(b) Whether the applicant is entitled to the reliefs claimed herein.

(c) Who is liable to pay costs of the suit?

17. It is not in dispute that the applicant took over the premises upon the demise of her late mother one Jane Lucy Njeri Mwangi. She cleared the rent arrears and admittedly paid rent for the month of April 2021. A receipt was issued in her favour.

18. She continued doing business in the premises and on 22nd June 2021, the landlady through her advocates issued her with a notice to vacate the suit premises on the basis that she did not recognize her as a lawful tenant. The date for delivery of vacant possession was immediate.

19. According to the landlady in her counsel’s submissions, she did not accept rent for 2 months as envisaged in section 60(2) of the Land Act, 2012 as she only allowed the applicant one (1) month on the basis of compassion since she had lost her mother. No letters of administration have been produced by the applicant and it is the landlady’s submission that she could not act as a legal representative of her mother in line with the decision in Edith Wambui Otieno – vs- Joash Ohieng Ougo & Another (1987) eKLR at page 9/12.

20. I note that the landlady admits having accepted rent for the month of April 2021 from the applicant after the demise of her mother who was the original tenant. In my view, this created a new tenancy independent of the late mother’s tenancy.

21. In this regard, I am guided by the superior court’s decision in the case of Fairmont Mount Kenya Safari Club – vs- Jennifer Wambui Nyakinyua (2017) eKLR at paragraph 29 which presented similar facts where this Tribunal’s decision to the following effect was upheld:-

“It is conceded by counsel for the Respondent that the deceased, the mother of Jeniffer was a tenant and that hers was a controlled tenancy. The question therefore is, did the death of Phyllis terminate the tenancy relationship”.

The answer is to be found in Section 4(1) which I hereby reproduce-

‘‘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 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.

The emphasis is on the words ‘shall terminate’. It means a controlled tenancy cannot terminate on its own, not even death of a party can terminate it. First to be terminated, the landlord has to issue a notice under section 4(2). Therefore the death of Phylis did not terminate the tenancy relationship. The daughter Jeniffer continued on the same terms as her deceased mother. She could not inherit the license relationship since her mother’s relationship was a controlled tenancy’’.

22. On the question of locus standi, the superior court at paragraph 50 held as follows:-

“On whether the respondent had locus standi to bring or institute a claim before the Tribunal, there being evidence that the respondent was in use and occupation of the suit premises, I find and hold that she was entitled to bring the claim, not as a representative of the estate of her mother but as a person in use and occupation of the suit premises”.

23. As regards whether the applicant is entitled to the reliefs sought, I find that the notice to vacate contravened Section 4(2) of the landlord and Tenant (Shops, Hotels and catering Establishments) Act cap. 301, Laws of Kenya as it is not in the prescribed form. It is defective and invalid.

24. The applicant feared that she was facing imminent illegal eviction and was thus entitled to seek a quia timet injunction in line with the decision in the case of Kwality Candies & Sweet Ltd – vs- Industrial Development Bank Ltd (2005) e KLR where it was held at page 6-7/11 as follows:-

“A quia timet action is not based upon hypothetical facts for the decision of an abstract question. When the court has before it evidence sufficient to establish that an injury will be done if there is no intervention by the court. It will act at once and protect the right of the party who is in fear and thus supply the need of what has been termed protective justice. It is a very old principle”.

25. Guided by the said decision, I am satisfied that the applicant is entitled to an order of injunction. I am also satisfied that the notice to vacate the suit premises being offensive to the provisions of Section 4(2) of Cap. 301, Laws of Kenya ought to be dismissed.

26. In the premises the following final orders commend to me:-

(a) The application dated 25th June 2021 is hereby allowed in terms of prayer 5 thereof.

(b) The notice to vacate dated 22nd June 2021 is hereby dismissed and declared invalid.

(c) The OCS Kayole Police Station and the local administration are directed to ensure compliance with the orders of the Tribunal.

(d) The tenant shall continue paying rent to the landlord at the prevailing rate with liberty to the latter to serve proper notices under Cap. 301, Laws of Kenya.

(e) Costs of Kshs.25,000/- is awarded to the tenant as against the landlord which shall be defrayed against the rent account (if not paid).

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY OF FEBRUARY 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

MUGO FOR TENANT/APPLICANT

KEGODE FOR THE LANDLADY