[2021] KEBPRT 152 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 115 OF 2021 (NAIROBI)

STANLEY MWITI............……………….….…………….…APPLICANT/TENANT

VERSUS

SHUMI JUMA..…………..……....................................RESPONDENT/LANDLADY

RULING

1. Before me is a motion dated 7th June 2021 by the Landlady in which the parties have been interchanged to appear as if she is the Respondent and the Tenant as the Applicant.

2. In the said motion, the Landlady is seeking that the tenant be ordered to vacate the demised premises and hand over possession to her to enable repairs, renovations and other improvements.

3. The application is supported by the affidavit of the Landlady sworn on even date to which is attached a notice marked “SJ1” giving the tenant 3 months effective from May 2021 to July 2021 to look for alternative premises and vacate from the demised premises to enable her carry out the intended improvements.

4. According to the landlady, the said improvements cannot be carried out without taking vacant possession of the said premises. It is deposed that the tenant has without justification refused to vacate and referred the matter to this Tribunal.

5. She further deposes that unless the tenant vacates the premises, she will not be able to carry out the intended repairs and improvements in the premises and it was in the interest of justice that the application be granted.

6. The application is opposed through a replying affidavit of the tenant sworn on 7th July 2021 admitting that he was served with an illegal notice marked “JSM-1” to vacate the premises.

7. According to the tenant, the landlady is not truthful and was using the excuse of renovating the business premises to illegally terminate the tenancy agreement.

8. He deposes that his differences with the landlady arose after she decided to increase rent from Kshs.6,500/- to Kshs.10,000/- without any notice using text messages marked ‘JSM-2’.

9. It is the tenant’s case that he has diligently paid rent in time without fail and the landlady’s application is an abuse of court process and waste of time.

10. The landlady swore a supplementary affidavit on 30th July 2021 denying that she has ever raised rent since the tenant entered the business premises and that the tenant occupies single residential room for which he pays Kshs.3,000/- per month and Kshs.3500/- for the business premises to make a total of Kshs.6500/-.

11. According to the landlady, the tenant has not been consistent in paying rent and has been demanding for reduction of rent citing high cost of living in terms of annexture ‘SJ 1’.

12. The tenant filed a further affidavit sworn on 4th August 2021 in which he deposes that the landlady was trying to sanitize her illegal notice marked “JSM1” and the application dated 7th June 2021 is premature and as such “dead on arrival”. He deposes that it should wait for hearing of the reference.

13. The tenant deposes that he has already filed a reference to the landlady’s statutory notice which is now on court record. The said statutory notice was forwarded to the tenant’s advocate on 2nd August 2021 after this Tribunal directed so vide annexture “JSM-3”.

14. Parties were directed to file written submissions in respect of the application and preliminary objection dated 7th July 2021 for disposal.

15. The preliminary objection by the tenant is to the effect that the tenancy notice is incompetent as it offends the mandatory requirements of section 4 (2) of the landlord and Tenant (Shops, Hotels and Catering Establishments Act, Cap. 301.

16. The issues for determination in this matter are:-

(a) Whether the notice served upon the tenant is valid,

(b) Whether the landlady is entitled to the orders sought,

(c) Who is liable to pay costs?

17. Section 4(2) of Cap. 301 provides as follows:-

“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”.

18. In the instant case, the notice marked ‘JS-1’ annexed to the Landlady’s application dated 7th June 2021 is not in the prescribed form. The effect of serving a defective notice was discussed in the case of Fredrick Mutua Mulinge t/a Kitui Uniform – vs- Kitui Teachers Housing Co-operative Society Limited (2017) eKLR at page 4/6 wherein the court cited the case of Manaver N. Alibhai t/a Diani Boutique – vs- South Coast Fitness & Sports Centre Limited Civil Appeal no. 203 of 1994 where it has held as follows:-

“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy, section 4(1) of the Act states in very clear language that a controlled tenancy shall not 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 specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The notice must also specify the ground upon which termination is sought. The prescribed notice in form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice”.

19. Citing the case of Lall – vs- Jeypee Investments Ltd Nairobi HCCA No. 120 of 1971 (1972) EA 512 the court stated as follows:-

“The landlord and tenant (shops, Hotels and Catering Establishment) Act, is an especially enacted piece of legislation which creates a privileged class of tenants for the purpose of affording them the protection specified by the provisions against ravages of predator landlords. Such protection can only be fully enjoyed if the provisions of the Act are observed to the letter otherwise the clearly indicated intention of the legislature would be defeated. In order to be effective in this fashion, the Act must be construed strictly no matter how harsh the result…………The Landlord and Tenant Act laid down a code which parliament intended to be followed and if a landlord does not give notice of termination as prescribed, the notice will be ineffectual. This may seem a technical and unmeritorious defence but there is no doubt that the court has no power to dispense with these time limits if the defendant chooses to object at the proper time. This is an Act which requires, in so far as the giving of the notice is concerned, absolute and complete not merely substantive compliance with its peremptory provisions”.

20. In the instant case, the landlady served a ‘defective notice’ and rushed to this Tribunal even before the time given therein had expired to seek for eviction orders. The instant proceedings being based on a defective notice are incompetent and bad in law.

21. I have seen the statutory notice marked “JSM” 3(a) forwarded to the tenant’s advocates vide a letter dated 30th July 2021 which is expressed to take effect on 1st August 2021. The same appear to be backdated to read 10th May 2021 and there is no evidence that it was ever served upon the tenant. No explanation is given why the said notice was not attached to the application dated 7th June 2021 at the time of filing if it ever existed. It cannot certainly be the subject matter of the instant proceedings.

22. In the premises, I proceed to make the following orders:-

(a) The application dated 7th June 2021 is hereby dismissed with costs.

(b) The preliminary objection dated 7th July 2021 is hereby upheld and the termination notice marked “JS-1” annexed to the supporting affidavit is hereby dismissed and the tenants reference dated 19/5/2021 is upheld.

(c) The tenant is awarded costs of the application and the reference assessed at Kshs.25,000/-.

It is ordered.

RULING DATED, SIGNED & DELIVERED THIS 5TH DAY OF NOVEMBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling delivered in absence of the parties.