[2022] KEBPRT 93 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. E020 OF 2021 (ELDORET)

TARUNA SURESH KUMAR SHAR

T/A. DHAVAL EMPORIUM.............................................................................TENANT

VERSUS

SEDCO CONSULTANTS LIMITED................................................................AGENT

RULING

Parties and their Representatives

1. Wambua Kigamwa & company Advocates, represent the tenant.

2. J. L. Cheruyoit Advocates represent the Agent.

The Dispute Background

3. The Tenant on 16th September 2021 moved this honourable court by way of reference and notice of motion seeking among other orders that:

a) The service of this application be dispensed with in first instance.

b) The agent by itself, its servants and or agents be prohibited and restrained from harassing the agent, interfering with his tenancy activities in whatsoever manner, evicting the tenant unlawfully or terminating the controlled tenancy unlawfully in respect of the business premises situated within the land parcel known as ELDORET MUNICIPALITY/BLOCK 6/58pending hearing and determination of this application in the first instance and thereafter pending hearing and determination of the complaint.

c) That the Officer Commanding Eldoret Central Police Station or any other police station that is nearer to be demised premises do assist in compliance with the orders and ensures peace prevails..

d) That costs of this application be provided for.

The Tenants vide an order dated 24th September 2021 obtained orders aandb, certifying the matter as urgent and prohibiting and restraining the agent by itself, its servants and/or agents from harassing the tenant, interfering with his tenancy activities in whatsoever manner, evicting the tenant unlawfully or terminating the controlled tenancy unlawfully in respect of the business premises situated with the and parcel known as ELDORET Municipality/Block 6/58 “Hereinafter, Suit Premises”pending hearing and determination of this application.

Tenant’s Case

4. The Tenant deponed in his affidavit that he has been a Tenant for over 10 years and that he pays monthly rent of KSh 40,000. 00/-, and, that he has been diligently so doing, as such, controlled tenancy is ensued.

5. He contended that, the actions of the agent attempting to serve him with a Notice are blatant breach of the provisions of the Law, CAP 301. He premised the said on I inter alia following grounds:

a. That the Agent intends to terminate the tenancy without due respect as to the requirement of the sufficient notice.

The Agent’s Case

6. They deponed that, the suit premises, which the tenant carries business on is one of the properties managed by the agent pursuant to the decision of the court in HCOMM E148 OF 2019 where in SEDCO were retained as property managers to assist the receiver manager.

7. It is their case that the landlord was served with a statutory notice dated 3rd March 2021by the County Government of Uasin Gishu in which the county demanded of the landlord to abate the nuisance as it was well identified in the said Notice. That the landlord in response was expected to do among others the following;

a. Remove and replace all temporary structures on the premises with provision of permanent structures.

b. Redecorate by way of painting both internal and external aspects of the premises.

c. Connect the premises to piper water from ELDOWAS water mains.

d. Remove all the dilapidated structures within the premises and construct new permanent structures.

This was followed by a notice from JLC Advocates requiring the tenant to vacate immediately.

Analysis of Law and Determination

8. I have carefully analyzed all the pleadings and submissions before this honorable Tribunal, all relevant evidence adduced before this Tribunal. There being no contestation as to the Jurisdiction of this Court, I shall then proceed to the merit of the applications before me.

9. There is also no contestation as to the relationship between the Tenant and the agent ensuing controlled tenancy. As such, it is straight and correct in my knowledge, and, hereby further condense that the tenancy herein is a controlled tenancy as per section 2 of CAP 301 laws of Kenya.

10. The two issues that fall for determination by this court is whether the notice to the tenant is appropriate in law? And if so how do you treat it in light of the notice from the County Government herein above reproduced in part.

11. The impugned notice required that the Tenant vacant the suit premises immediately. That the consequence was, he risks losing his properties.

12. Cap 301 is very clear on the issue of the notice and termination of the controlled tenancy Section 4 (1) and (2) of the said Act, dictates, that possession or enjoyment of the controlled tenancy shall not be seized of except in the cases where the Landlord has issued a notice in the prescribed format. The interpretation of this provision means. That a Tenant has to be served with a notice of at least 60 days in the cases where a controlled tenancy is to be interfered with.

13. It is not my duty at this stage to assess the merit of the notice but the manner and procedure of issuance and execution. The notice has to comply with the requirement of the cited law. I am in conviction that the notice of termination is inappropriate and should therefore be vacated.

14. I find the allegations that the pleadings are defective void of merit. The agent having been duly appointed by the court order as the representative of the landlord in this suit property together with the receiver manager who it is claimed is yet to take up the said role. It is in my considered view the properly so sued.

15. This leaves me with one notice the one issued by the County Government Department of Health. Right to a clean and healthy environment is a fundamental basic right provided for in the Constitution of Kenya and this Tribunal should not be seen as abating the continued occupation of premises that are clearly no longer habitable it is in light of this that I proceed to partially allow the application along these lines;

a) The agent by itself, its servants and or agents are prohibited and restrained from harassing the Tenant, interfering with his tenancy activities in whatsoever manner, evicting the Tenant unlawfully or terminating the controlled tenancy unlawfully in respect of the business premises situated within the land parcel known as ELDORET MUNICIPALITY/BLOCK 6/58 for the next 60 Days.

b) The Tenant and Agent are given 30 days within which to agree on how the said repairs will be undertaken in compliance with the County Government notices either by the Agent or by the Tenant and then subsequently recover the said repair costs from the rent.

c) If undertaken by the Agent the same ought to be done within a period of 3 months and the Tenant shall be given the first priority in occupying the said premises upon completion.

d) The main reference be listed for hearing within 45 days mention on 11th March 2022 to confirm compliance and agreement.

e) The Officer Commanding Eldoret Central Police Station or any other police station that is nearer to the demised premises do assist in compliance with the orders and ensures peace prevails.

f) Each party to bear their own costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 2ndday ofFebruary, 2022 in the presence of Muafor Mugambifor theTenantand in the absence of theAgent.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL