[2021] KEBPRT 427 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO E016 OF 2021 (NAIROBI)

SAMSON MWICWIRI MUTUNGI........................TENANT/APPLICANT

VERSUS

BETTY NJERI....................................................LANDLORD/RESPONDENT

RULING

The Tenant’s notice of motion dated 12th April 2021 seeks the following orders;

1. Spent.

2. That the Landlord be prohibited from in any manner whatsoever and or howsoever interfering with the Applicant’s quite (sic) occupation and lawful enjoyment of the suit premises at Njathaini – Zimmerman (summarized).

3. That the Landlord be ordered to accept rent and in default the Tenant be allowed to deposit the same in the Tribunal at the Landlord’s cost.

4. That the OCS Kasarani Police Station do assist in ensuring compliance with these orders.

5. Costs.

The grounds upon which the application is brought may be summarized as follows;

1. That the Tenant runs the risk of being forcefully evicted from the demised premises.

2. That the Landlord’s refused to accept rent, the issuance of illegal notice and threats of eviction are occasioning the Tenant hardship.

3. That the threatened eviction is illegal and contrary to the provisions of Cap 301, Laws of Kenya.

4. That the Applicant is a protected Tenant who ought to be protected by this court from the illegal activities of the Landlord.

The supporting affidavit sworn by the Applicant/Tenant may be summarized as follows;

1. That the Applicant pays to the Respondent a monthly rent of Kshs 3,000/-.

2. That the Landlord has refused to accept rent and issued the Applicant/Tenant with an illegal notice of eviction.

3. That the Tenant has invested heavily in the suit premises and he stands to suffer loss should he be evicted.

4. That the Landlord/Respondent be ordered to accept rent or in the alternative, the Applicant be allowed to deposit rent at the Tribunal.

The application is opposed by the Respondent’s affidavit which I summarize as follows;

1. That the Applicant moved into the suit premises at a monthly rent of Kshs 3,000/- in the year 2017.

2. That the suit premises is in a bad state of repair and a danger to the Applicant and other occupants of the premises.

3. That the Applicant has refused to vacate the suit premises to give room for renovations despite having been issued with a notice to so vacate, the notice issued to the Applicant lapsed on 1st May 2021.

4. That the Tenant who has refused to pay rent has also become abusive to the Respondent.

5. That the Respondent has never refused to accept rent.

The application came up for hearing on 17th May 2021 and the parties opted to proceed by way of oral submissions;

The Tenant/Applicant’s Submissions;

The Tenant’s submissions may be summarized as follows;

1. That he has sworn an affidavit in support of his application.

2. That the Landlady wants to kick out old Tenants from the premises.

3. That the Respondent has insisted that the Tenant must move out of the premises and refused to accept rent.

4. That the Landlady has issued the Tenant with a one month’s notice to vacate, which is too short.

5. That the Tenant does not have alternative premises.

6. That the building is not collapsing.

7. That the Landlady ought to pay back goodwill to the Applicant or in the alternative, issue the Tenant with a proper notice to vacate.

The Respondents’ Submissions;

1. That the building is in a bad state and for that reason, the Applicant was issued with a notice to vacate effective 1st May 2021. The building needs to be renovated.

2. That the Respondent has issued a proper notice but the Tenant has refused to vacate.

3. That the Respondent has not refused to accept rent, the Tenant is in arrears of three months amounting to Kshs 15,500/-.

4. That the Respondent has already delivered the materials for the renovations and the said materials are an inconvenience to the other Tenants.

5. That the premises is a threat to the life of the Tenant.

Tenant’s Response;

In response to the Respondent’s submissions, the Tenant reiterated that;

1. The building is not collapsing.

2. The Respondent is untruthful.

3. The Landlord has not issued any notices to the other Tenants in the same premises.

Having set out the cases for the respective parties, in my view, the issues that call for determination are the following;

1. Whether the Respondent has issued to the Applicant/Tenant the Landlord’s notice to terminate or alter terms of tenancy as envisaged under section 4(2) of Cap 301and whether the said notice is valid.

2. Whether the Tenant/Applicant is entitled to the prayers sought in his application dated 12th April 2021.

On Issue No. 1

The Respondent at paragraph 5 of her replying affidavit contends that she issued a notice to the Tenant to vacate dated 1st March 2021. The notice according to her was effective 1st May 2021. That notice though referred to and purported to be annexed in her affidavit was not filed in court.

On his part, the Tenant contends in his supporting affidavit that the Respondent has issued an illegal notice. He also did not annex the illegal notice to his said affidavit. In his submissions before me, he stated that the Landlord/Respondent gave him a one-month notice to vacate from the suit premises. He further stated that he ought to be given a proper and adequate notice to vacate the premises.

The notice to terminate or alter the terms and conditions in a controlled tenancy is to be found under section 4(2) and section 4(4) of Cap 301. Relevant to the dispute herein is section 4(2) which is in the following terms;

“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.

Under section 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 specified therein.”

As I have observed earlier, the notice to vacate/terminate the tenancy herein has not been exhibited by either of the parties. I will therefore deal with the statements/averments of the parties as they are on the record. The Respondents contention is that she issued a notice to terminate tenancy dated 1st March 2021 and effective 1st May 2021.

Assuming that this is the true position, then two clear months would have ended on 1st June 2021 and not 1st May 2021. For this reason alone, the notice issued by the Respondent does not meet the threshold set out under section 4(4) which is coachedin mandatory terms. As I have not seen the notice, I am unable to tell whether it conform to the provisions of section 4(5) of Cap 301.

The Tenant’s allegation that he was issued with a one month’s notice to vacate does not help matters either. If I were to believe the Tenant, I would still find that the notice issued does not conform with the provisions of section 4(2) of Cap 301.

On this issue, I therefore find that the notice issued by the Respondent to the Tenant (if any) does not conform to the provisions of section 4 of Cap 301 and is therefore illegal and invalid. That being the case, the Respondent’s attempt to terminate the tenancy herein is illegal and of no consequence.

On Issue No. 2

The Landlord’s desire to terminate the tenancy arises out of the reason that she intends to renovate the premises. At paragraph 4 of her replying affidavit, the Respondent states that the premises is in bad state of repairs and risky to the Respondents and other occupants of the premises. She fears that the premises might “fall down” any time.

The Tenant on his part in countering this contention by the Respondent has stated that the building is not about to collapse as alleged by the Respondent. He further stated that other Tenants in the premises have not been served with similar notices to vacate.

I have carefully considered the affidavits filed by the parties and their oral submissions. The Respondent has not placed any material before the court to establish the condition of the demised premises that qualify it to require renovations which would necessitate the notice to terminate or alter the terms of the tenancy between the parties herein.

The Respondent has contended herself with a mere averment that the premises require repair and they may “fall down” any time, risking her life and that of other occupants. I am unable to find that the demised premises indeed require any renovations. It is the word of the Respondent against that of the Applicant. This is further compounded by the Respondent’s assertion that she has already deposited materials for renovation of the premises and that the materials are an inconvenience to other Tenants.

Clearly, if there are other Tenants in the premises, being inconvenienced by the said materials in the same premises, then they ought to be inconvenienced by the state of the premises as well. The Applicant’s contention that other Tenants have not been issued with similar notices to vacate, on similar grounds is therefore not without merit.

On this issue, I therefore do find that the Tenant’s application is meritorious and I do issue the following orders;

1. That the Respondent is hereby restrained from unlawfully terminating the Tenant’s tenancy and from interfering with the Tenant’s quiet occupation and enjoyment of the suit premises.

2. The Tenant to pay all outstanding rent arrears and water and electricity bills (if any) and failure by the Respondent to accept the rent, the same be deposited with the Tribunal.

3. The OCS Kasarani Police Station to ensure compliance with those court orders.

The Fate of the Reference by the Tenant to the Tribunal;

The reference by the Tenant to the Tribunal is in the following terms;

“The Landlord has unlawfully refused to accept rent for April 2021 and issued illegal notice threatening to evict me any time from now contrary to provisions of Cap 301 Laws of Kenya. I pray this court to intervene and I be given the necessary orders plus costs of this case.

The reference is expressed to the brought under section 12(4) of Cap 301 which is in the following terms;

“In addition to my 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.”

I have already made specific findings that the notice to terminate the tenancy herein does not or is not issued in conformity to section 4(2) of Cap 301. It is illegal and invalid. I have further found that the reasons put forth for the termination are not proved by the affidavits satisfactorily.

The complaint raised by this Tenant has been answered in his favour by my above findings. In the circumstances, no useful purpose would be served by prolonging this dispute. Its pendency at the Tribunal would be an unnecessary yoke on the shoulders of the parties herein. It is also my view that allowing or disallowing the reference is a power granted under the Act (see section 9 thereof) and (section 12(4). The tenancy notice by the Respondent (if any) is ordered to be of no effect and the Tenant’s reference succeeds.

Each party shall bear its own costs.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

Ruling dated, signed and delivered by Hon A. Muma this 11thday of June 2021 in the presence of the Tenant and Landlord.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL