[2021] KEBPRT 85 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 69 OF 2021 (KAKAMEGA)

STEPHEN THIONG’O….......................................TENANT/APPLICANT

VERSUS

GEORGE GOR CHORO...........................LANDLORD/ RESPONDENT

RULING

A. Parties and Representatives

1. The Applicant Stephen Thiongo is the Tenant and rented space on Block 1/53 situated within Canon Awouri Street Kakamega for the business (hereinafter known as the ‘tenant’)

2. The firm of M. Kiveu Advocates represent the Tenant/applicant in this matter.

3. The respondent is the Landlord and owner of the suit property situated within Canon Awouri Street Kakamega rented out to the tenants (hereinafter the Landlord).

4. The Landlord appears in person in this matter.

B. The Dispute Background

5. On 5th May 2021 the Landlord issued the tenant with a notice to terminate tenancy on the grounds that they want to use the premises for their personal engagements.

6. 10th June 2021 the Tenant, in response to the notice to terminate tenancy, filed a reference before this Tribunal opposing the notice by the Landlord.

7. On 26th August 2021 the Landlord moved this Tribunal by way of reference and notice of motion under certificate of urgency filed under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Landlord was seeking amongst other orders the Tenant be evicted from the suit property and that the tenant be compelled to settle rent arrears of Kshs. 68,000/=. Further the Landlord was seeking that the premises be renovated and put to use by the Landlord.

8. On 1st September, 2021the Tribunal ordered that the Respondents be restrained by themselves, their employees, and/or agents from evicting the Tenant.

C. Jurisdiction

9. The Jurisdiction of this Tribunal is not in dispute.

D. The Tenant’s Claim

10. The Tenant filed a reference dated 10th June 2021 in opposition of a notice to terminate tenancy issued by the Landlord.

E. The Landlord’s Claim

11. The Landlord issued the Tenant with a notice to terminate tenancy dated 5th May 2021.

12. The Landlord filed a notice of motion application dated 26th August 2021.

13. Parties have filed written submissions and the matter was fixed for ruling on 17th December 2021.

F. List of Issues for Determination

14. It is the contention of this Tribunal that the issues raised for determination are as follows;

Whether the Landlord’s notice of termination of tenancy dated 5th May 2021 is lawful and valid?

G. Analysis and Findings

Whether the Landlord’s notice of termination of Tenancy dated 5th May 2021 is lawful and valid.

15. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya Act at section 4(2)provides that:

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.

16. Section 4(4) further provides that:

No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party, as shall be specified therein

17. In the case of Manaver N. Alibhai T/A Diani Boutique vs. South Coast Fitness & Sports Centre Limited, Civil Appeal No. 203 of 1994it was stated 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.”

18. In this case the Landlord issued the Tenant with a notice to terminate tenancy on 5th May 2021 which was to take effect from 1st August 2021. Based on the above provision, the said notice was to take effect after two months which is as per the provisions of Cap 301. As such the said notice can be deemed to be valid.

19. Section 7(1) (g)of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya Act provides that some of the grounds upon which the Landlord may seek to terminate tenancy include;

(g) subject as hereinafter provided, that on the termination of the tenancy the landlord himself intends to occupy for a period of not less than one year the premises comprised in the tenancy for the purposes, or partly for the purposes, of a business to be carried on by him therein, or at his residence.

20. The court provided a threshold that Landlords have to meet before they can satisfactorily be granted possession and stated as follows:

“For this purpose the Court must be satisfied that the intention to reconstruct is genuine and not colourable: that it is a firm and settled intention, not likely to be changed: that the reconstruction is of a substantial part of the premises, indeed so substantial that it cannot be thought to be a device to get possession; that the work is so extensive that it is necessary to get possession of the holding in order to do it; and that it is intended to do the work at once and not after a time. Unless the Court were to insist strictly on these requirements, tenants might be deprived of the protection which Parliament intended them to have. It must be remembered that, if the landlord, having got possession, honestly changes his mind and does not do any work of reconstruction, the tenant has no remedy. Hence the necessity for a firm and settled intention

21. It was also stated in the case of Fisher v Taylors Furnishing Stores Ltd[1956] 2 All ER 78, that;

There must, therefore, be an intention and it must be an intention which in point of time is related to the termination of the current tenancy. It seems to me that the intention must be to do one of the following things: (i) to demolish the premises comprised in the holding; or (ii) to reconstruct the premises comprised in the holding; or (iii) to demolish a substantial part of the premises comprised in the holding; or (iv) to reconstruct a substantial part of the premises comprised in the holding; or (v) to carry out substantial work of construction on the holding; or (vi) to carry out substantial work of construction on a part of the holding.

If the landlord prove an intention to do one of those things, and to do it on the termination of the current tenancy, he must then prove that he could not reasonably do it without obtaining possession of the holding.

21. In the current case the notice issued by the Landlord stated that the grounds for termination were to put the premises to their own use. It is the contention of this Tribunal that the Landlord has not satisfied the above stated requirements to show their firm and settled intention to use he premises. The Tribunal considers this ground as vague as it cannot be clearly established as to how exactly the Landlord intends to use the premises. Further they have failed to attach any proof to show this Tribunal of their intended use. Documents such as development plans or proof of funds would have sufficed to clearly demonstrate the intention to use the premises.

22. The Tribunal has also considered that the Tenant has complied with the orders of the court with regards to rent payment and as such evicting such a Tenant without sufficient proof of the intention to alternatively use the premises by the Landlord would be a grave injustice to the Tenant.

23. Based on the above it is the contention of this Tribunal that the Landlord has not sufficiently shown that there exists a firm and real intention to put the premises to use. On this basis therefore, I find that the Landlord has failed to convince this Honourable Court that there is a need to evict the tenant and require vacant possession of the suit premises.

H. Orders

a) The upshot is that the Tenant’s reference dated 10th June 2021 in opposition of the notice to terminate tenancy is allowed.

b) The Landlord’s application dated 26th August 2021 is allowed in part that is to say; The Tenant to clear any outstanding arrears accrued during the pendency of this suit within 14 days failure to which the Landlord be at liberty to distress.

c) The Tenant to keep paying rent as and when it falls due.

d) The Landlord shall be at liberty to issue a fresh notice at a time when they are ready to provide proof of the intention to utilize the premises.

e) Each party shall bear their own costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 17TH DAY OF DECEMBER, 2021 IN THE ABSENCE OF THE PARTIES.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL