[2022] KEBPRT 13 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 160 OF 2020 (MOMBASA)

SWALEH ABDUN SULUM....................................LANDLORD/APPLICANT

VERSUS

JOSHUA KALUNGE MAMBAO...........................TENANT/RESPONDENT

RULING

1. The Applicant’s/Landlord’s application dated 17th June 2020 seeks the following orders;

a. Spent.

b. That this honourable court do grant a declaratory order that the tenancy between the Applicant and the Respondent being a shop christened Mwambao café on the property known as MSA/Block/XVIII/116 here (sic) is hereby effectively terminated vide the notice dated 2nd March 2020.

c. That the Respondent/Tenant to hand over vacant possession of the suit premises and the OCS Central Police Station to provide police escort assistance to the Applicant in effecting the vacation orders.

d. Costs of the application be issued against the Defendant (sic).

2. The application is based on the grounds set out on the face of the application and the affidavits of Swaleh Abdun Sulum which I summarize as follows;

a. That the Applicant is the proprietor of all that building known as MSA/Block/XVII/116 thereafter referred to as (the suit premises).

b. That the Applicant served the Respondent with a notice to terminate tenancy dated 2nd March 2020, the notice was in the proper form stipulated by law.

c. That despite the notice taking effect on 3rd June 2020, the Tenant has refused to vacate the suit premises.

d. That there is no written agreement between the parties and the Respondent is not a protected Tenant because he pays rent of Kshs 20,000/- per month.

e. That the Applicant has no wish to negotiate with the Tenant and his wishes are as per the notice to terminate the tenancy.

f. That by an order of the Tribunal dated 5th March 2020, the Landlord was at liberty to issue the Tenant with a termination notice in the prescribed form.

3. The application is opposed by the replying affidavits of Joshua Kalung’e Mambao which I summarize as follows;

a. That the Landlord gave the notice of 2nd March 2020 while there was still pending a reference No. 8 of 2019 before the Tribunal.

b. That the reference No. 8 of 2019 was decided in favour of the Tenant on 5th March 2020.

c. That once a Tribunal makes a determination on a notice, the Landlord cannot issue another notice before the expiry of twelve months.

d. That in any event, the notice dated 3rd June 2020 was objected by the letter dated 6th March 2020 (JK2).

e. That the Landlord is on a mission to evict the Tenant.

f. That the determination made by the Tribunal on 5th September 2019was on two notices issued by the Landlord on 5th September 2019 and 12th September 2019.

g. That it is clear that the Landlord issued a notice on 2nd March 2020 while the Tribunal rendered its decision on 5th March 2020, the notice could therefore not have been issued pursuant to an order which had not been made as purported by the Landlord.

4. Both parties have filed their written submissions which I have read and do consider in this ruling. In my view, the issues that arise for determination in this application are the following;

a. Whether the notice of termination of tenancy issued to the Tenant by the Landlord dated 2nd March 2020 is valid.

b. Whether the Landlord is entitled to the orders sought in his application dated 17th June 2020.

5. On issue (a)

a. The Landlord’s notice dated 2nd March 2020 is challenged on the basis that on 5th March 2020, the Tribunal in BPRT case No. 8 of 2020 between the same parties made a determination on the notices to terminate tenancy dated 5th September 2019and 12th September 2019. The Tenant is of the further view that the Landlord could not issue another new notice to terminate tenancy before the expiry of twelve months.

b. In support of this proposition, the Tenant places reliance on section 9(3) (b) of Cap 301 which is in the following terms;

(3) where a Tribunal has made a determination upon a reference no further tenancy notice shall be given in respect of the premises concerned which is based on any of the matters effected by the determination;

(a)….

(b) in any other case until after the expiration of twelve months, after the date of the determination, unless the Tribunal at the time of the determination specifies some shorter period.

c. The Landlord on his part states in his submissions that the notice to terminate was proper and no objection was lodged against the said notice. The Landlord is also of the view that the case BPRT No. 8 of 2020 is/was not a reference under section 6 of Cap 301 and therefore the provisions of section 9(3)(b) of Cap 301 do not apply to this case.

d. On 5th March 2020, the Tribunal allowed the Tenant’s application dated 13th January 2020 in BPRT case No. 8 of 2020 and amongst the orders issued was order number 5 in the following terms;

“The Landlord is at liberty to serve the Tenant with a notice in the prescribed form if he wishes to terminate the tenancy.”

e. The Tenant’s position would seem to be that any other notice to terminate his tenancy should have been issued after the expiry of twelve months from 5th March 2020 being the date of the determination of the reference. But had a reference been filed in BPRT caseNo. 8 of 2020?

f. The notices which were sought to be challenged by the Tenant in BPRT No. 8 of 2020 are the ones issued on 12th September 2019. The Tenant opposed the said notices by a reference to the Tribunal under section 12(4) of Cap 301. The said section is in the following terms;

“In addition to any 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.”

g. In my view, that was not a proper challenge to the notices to terminate as challenges to notices issued under section 4(2) of Cap 301 are resisted under the provisions of section 6(1) of Cap 301 which provides as follows;

“A receiving party who wishes to oppose a tenancy notice and who has notified the requesting party under section 4(5) of this Act that 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.”

h. The reference under section 6(1) is not to be equated with a complaint under section 12(4). The complaint under section 12(4) does not arise out of a notice to terminate issued under section 4(2) of Cap 301. Similarly, the reference referred to under section 9 of Cap 301 is a reference filed under the provisions of section 6(1) of Cap 301.

i. I am of the view that no reference under section 6(1) of Cap 301 was filed inBPRT case No. 8 of 2020. The Tribunal could therefore not have made a determination on a reference that was never filed and my further view in this regard is that section 9(3) cannot apply to complaints filed under section 12(4) of Cap 301.

j. A determination of a complaint under section 12(4) of Cap 301 cannot amount to a determination of a reference under section 6(1) of the Act.

k. The only avenue open to the Tenant herein to have challenged or objected to the Landlord’s notice to terminate tenancy was by way of filing a reference under section 6(1) of the Act. This the Tenant did not do and therefore fell prey to section 10 of Cap 301 which is in the following terms;

“Where a Landlord has served a notice in accordance with the requirements of section 4 of this Act, on a Tenant, and the Tenant fails within the appropriate time to notify the Landlord of his unwillingness to comply with such notice, or to refer the matter to a Tribunal then subject to section 6 of this Act, such notice shall have effect from the date therein specified to terminate the tenancy or terminate or alter the terms and conditions thereof or the rights or services enjoyed thereunder.”

l. In the circumstances, the notice to terminate tenancy took effect on 3rd June 2020 and I will consequently order that the Tenant hands over vacant possession of the suit premises at the expiry of ninety days from the date hereof. The reference by the Landlord succeeds with costs.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI (CHAIRMAN) THIS 15TH MARCH 2022 IN THE PRESENCE OF MR MWENDA FOR THE LANDLORD AND IN THE ABSENCE OF THE TENANT AND COUNSEL.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL