[2021] KEBPRT 138 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 119 OF 2020

CONSOLIDATED WITH 651A OF 2018 AND 162 OF 2016 (NAIROBI)

SUE MANPOWER LTD.................................TENANT/APPLICANT

VERSUS

APA INSURANCE LIMITED.......LANDLORD/1ST RESPONDENT

LLOYD MASIKA LTD.........................................2ND RESPONDENT

RULING

1. This ruling is in regard to the Tenant’s application dated 12th February 2020. By its said application, the Tenant sought the following prayers;

a. Spent.

b. That the Landlord/Respondent be ordered to restitute all the goods and properties back to the suit premises forthwith and unconditionally.

c. That the Landlord be ordered to reinstate the Tenant/Applicant back to the business premises forthwith and unconditionally.

d. That the honourable Tribunal be pleased to grant an order restraining the Landlord from selling the Tenant’s goods and/or in any other manner dealing with her goods, evicting, harassing her and/or interfering with her tenancy pending the hearing and determination of the suit.

e. That the OCS Central Police Station do ensure compliance of these court orders.

f. Costs.

2. The application is supported by the affidavit of the Tenant/Applicant which, summarized states as follows;

a. That she has been a Tenant on the suit premises since 2008, paying a monthly rent of Kshs 40,000/- without fail.

b. That there is pending before the TribunalcauseNo. 651 of 2018.

3. The application is opposed. The Respondents have filed their replying affidavit through one Julius Njuguna. The replying affidavit may be summarized as follows;

a. That the Tenant’s application is predicated upon a notice of objection of termination of tenancy, which notice is incompetent.

b. That the sole issue before the Tribunal is the persistent nonpayment of rent by the Tenant/Applicant.

c. That on 21st November 2019, the Landlord issued a notice to terminate tenancy upon the Tenant/Applicant. The notice was dully served upon the Tenant.

d. That counsel for the Tenant was also served with the notice to terminate on 27th November 2020.

e. That as at 15th January 2020 the Tenant had not filed any objection to the termination of the tenancy. The objection filed by the Tenant on 30th January 2020 is incompetent, null and void.

f. That the tenancy herein came to an end on 1st February 2020 in accordance with the law.

g. That the Tenant has not produced any evidence to show that it has paid the rent of Kshs 40,000/- per month.

h. That the Tenant is in the habit of filing numerous cases over the same cause of action.

4. The further affidavit of Julius Njuguna sworn on 24th February 2021at paragraph 2 states that the outstanding rent from 2013 to January 2021 is in the sum of Kshs 5,022,274. 15, the Tenant’s statement of account is annexed to the said affidavit and marked as JN.

5. On 20th April 2021, the parties were ordered to file and exchange written submissions. At the time of writing this ruling, only the Respondent’s submissions had been filed. I proceed to summarize the same as follows;

a. The application by the Tenant was necessitated by the notice of termination of tenancy issued by the Landlord dated 20th November 2019 and filed at the Tribunal on 21st November 2019.

b. That any time the Landlord issues a notice to terminate the tenancy, the Tenant has always moved to the Tribunal to stop the eviction and does not pay rent.

c. The Tenant has not demonstrated that she has paid rent as alleged.

d. The outstanding rent of Kshs 5,022,274. 15 dates back to 2018.

e. That Civil Appeal No 63 of 2011, Gamex Enterprises Ltd Vs Sayani Investment was called in aid where the Tenant was persistently in arrears of rent.

f. The effective date of the termination notice was 1st February 2020, the Tenant’s application was filed after the effective date when the tenancy had been terminated hence null and void.

g. That the Tenant has not paid any rent since she obtained orders in the instant application. The orders obtained by the Tenant did not stop her from paying rent. They only stopped the Landlord from evicting her.

h. The failure by the Tenant to pay rent amounts to a breach of the tenancy agreement and thus the Tenant should not be allowed to enjoy court orders at the expense of not paying rent.

i. That the application is an abuse of the court process and ought to be dismissed.

6. The issues that arise for determination in this application are in my view the following;

a. Whether the reference filed by the Tenant at the Tribunal on 30th January 2020 is competent.

b. Whether the Tenant/Applicant is entitled to the orders sought in his application dated 12th February 2020.

7. On Issue (a)

a. The Landlord’s notice to terminate tenancy is the one dated 20th November 2019. The effective date of the said notice is indicated to be 1st December 2020. I have carefully read the notice and I am satisfied that the sad notice satisfies the provisions of section 4(2)(4) and (5) of Cap 301 of the Laws of Kenya. The Tenant herein filed its reference on 30th January 2020, well before the effective date.

b. The Landlord’s contention seems to be that the Tenant’s/Applicant’s failure to notify the Landlord in writing within one month of the receipt of the notice of termination whether or not he agreed to comply with the said notice made the reference filed on 30th January 2020 incompetent and therefore null and void. But is this so?

Section 4(5) of Cap 301 is in the following terms;

A tenancy notice shall not be effective for any of the purposes of this Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration of reassessment of concerned and requires the receiving party to notify the requesting party in writing within one month after the date of the receipt of the notice whether or not he agrees to comply with the notice.

c. Section 6 of Cap 301 is in the following terms;

(1) A receiving party who wishes to oppose a tenancy notice and who has notified the requesting party under section 4(5) of this Actthat he does not agree to comply with the tenancy notice, may before the date upon which such notice is to take effect, refer the matter to a Tribunal whereupon such notice shall be of no effect until and subject to the determination of the reference by the Tribunal.

Provided that a Tribunal may for sufficient reason and on such conditions as it may think fit permit such a reference notwithstanding that the receiving party has not complied with any of the requirements of this section.

d. From the above provisions, it is clear that the filing of a reference stays the operation of the termination notice until the reference is determined by the Tribunal. In the instant case, the termination notice was to take effect on 1st February 2020. The reference was filed on 30th January 2020. Clearly, the effects of the notice were arrested on 30th January 2020 when the reference was filed and before the effective date of 1st February 2020.

e. I also note that whereas section 4(5) stipulates that a notice that does not satisfy the requirements of that section shall not be effective for any of the purposes of this Act (Cap 301), section 6 of Cap 301 does not state what ought to happen to a reference filed by a party who has not notified the requesting party of his intention not to comply with the notice issued under section 4(2) of the said Act; within the time frame stipulated.

f. Indeed, the proviso to the section empowers the Tribunal to permit a reference notwithstanding that the receiving party has not complied with any of the requirements of the section.

g. I therefore do hold that the failure by the Tenant/Applicant to notify the Respondent/Landlord that he did not intend to comply with the notice of termination did not render the reference defective and incompetent. I am of the view that the filing of the reference by the Tenant before the termination notice took effect cured this defect.

8. On Issue No (b)

a. The Tenant in its affidavit sworn on 12th February 2020 states that it has been paying the rent of Kshs 40,000/- per month without fail. I note that the Tenant has not produced any evidence to prove this statement. One would have expected the Applicant to annex receipts or any other evidence of payment. The Applicant has further stated that a decision was pronounced in BPRT case No. 162 of 2006 between the same parties herein and the said judgement was clear on what the Tenant/Applicant ought to do.

b. The Applicant has not annexed the decision referred to neither has it, in its affidavit disclosed what the court required it to do. I am therefore unable to relate the decision in that case to the facts and the dispute in the present case. The reference referred to at paragraph 6 of the Tenant’s affidavit is BPRT No 651 of 2018. Once again, the Applicant has not provided any information about the said suit other than stating that the same was coming up for mention on 13th February 2020.

c. The Tenant has not stated what steps it is taking or it has taken to prosecute the said case. There is not much to go by in relating the case with the present case.

d. The Landlord’s affidavit shows that as at December 2019, the Tenant was in rent arrears amounting to Kshs 3,937,891/-. The Landlord’s further affidavit sworn by one Julius Njuguna shows the rent arrears owing as at January 2021 to be Kshs 5,022,274. 25/-. The Tenant’s statement of account has been annexed to the said affidavit. The Tenant has not disputed the figures in both affidavits

e. The Tenant has also not disputed the fact that it has not paid any rent to the Landlord since it obtained orders on 12th January 2020. I do agree with the Landlord that the said orders did not stop the Tenant from paying rent.

f. I therefore do find that the Tenant is in rent arrears and therefore in breach of the tenancy agreement between it and the Landlord/Respondent. The Tenant is in the circumstances not entitled to the orders sought in its application dated 12th January 2020. I find no merit in the same and it is hereby dismissed with costs to the Respondent/Landlord. for the avoidance of doubt, the orders issued by the Tribunal on 12th January 2020 are hereby discharged.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

07. 10. 2021

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this 8thday ofOctober 2021 in the presence of Ms Makasifor theLandlordand in the absence of theTenantand its counsel.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL