[2022] KEBPRT 857 (KLR)

Wangatho v Gachecheh (Tribunal Case 61 of 2020) [2022] KEBPRT 857 (KLR) (Civ) (8 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 857 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 61 of 2020

Andrew Muma, Vice Chair

November 8, 2022

Between

Charles Githemo Wangatho

Tenant

and

Marc Timothy Gachecheh

Landlord

Ruling

A. Parties And Their Representative 1. The tenant/applicant is a tenant of the respondent in a premises on plot at LR No Karatina/Block1/145 (hereinafter referred to as the “tenant”)

2. The landlord/respondent, rented a premises on plot at LR No Karatina/Block1/145 to the tenant (hereinafter referred to as the “landlord”)

3. Learned counsel P S Kisaka & Co Advocates represent the tenant. (kisaka.advocates@gmail.com)

B. The Dispute Background 4. On September 29, 2020, the tenant filed a reference to the tribunal on the grounds that the landlord is;i.evicting the tenant out of the premises on plot at LR No Karatina/Block1/145;ii.eviction is being done without notice to terminate tenancy; andiii.evicting without settling on the amounts payable for renovations.

5. On February 25, 2022, the tenant filed a notice of motion application together with a supporting affidavit challenging the landlord’s notice to evict him from the premises on plot at LR No Karatina/Block1/145.

6. On May 13, 2022 the landlord filed a response to the application stating that the tenancy had terminated through effluxion of time and never renewed. Further, stated that the tenant was merely being evasive hence, reason to issue a notice to vacate.

7. On September 6, 2021 the tribunal gave interim orders that the applicant continue paying rent of Kshs 20,000 to the landlord on or before the 15th day of every month.

C. Claim And Defence 8. The landlord and the tenant entered into a tenancy agreement on December 17, 2013 which expired in January 2020.

9. The tenant’s claim is that the landlord has been receiving rent of the suit premises since the expiry of the lease and that the eviction notice is fraudulently worded.

10. It is the landlord’s claim that the tenant has been evasive and it was necessary to issue an eviction notice.

D. List Of Issues For Determination 11. The parties raised certain issues for determination and the tribunal shall proceed to distill the issues discussed by the parties and their counsels who submitted in writing as below:a.Whether there exists a tenancy relationship between the landlord and the tenant?b.Whether the notice to terminate is valid?

E. Analysis And FindingsWhether there exists a tenancy relationship between the landlord and the tenant. 12. The landlord in his replying affidavit dated May 13, 2022 paragraph 3, states that there is no tenant landlord relationship between him and the tenant as the lease agreement had expired on January 31, 2020.

13. However, the tenant stated in that he has been paying rent ever since in the reference filed on September 29, 2020.

14. Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act cap 301, provides for instances where a controlled tenancy arises which includes a tenancy which has not been reduce into writing.

15. The relationship between the tenant and the landlord is a controlled tenancy which has not been reduced into writing pursuant to section 2 (a) of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Actcap 301.

16. The tenant has produced receipts showing payment of rents to date and as such there exists a landlord tenant relationship the receipts proving payment of rent marked ‘M6a’.

Whether The Notice To Terminate Is Valid? 17. The tenant in his reference and affidavit dated September 29, 2020 averred that he was not issued with a proper notice to terminate the tenancy as landlord gave a notice requiring him to vacate the premises within 9 days as seen in the letter dated September 21, 2020.

18. Section 4 (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act cap 301, 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.

19. The notice issued by the landlord on September 21, 2020 is not a proper notice as per section 4 (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act cap 301.

20. The second notice which the landlord referred to during oral submissions was issued on November 25, 2021 which is during the subsistence of the case before the tribunal. Therefore, it is not valid as the landlord is estopped from evicting the tenant until the case is determined

F. Order 21. For the reason given above I order as follows that;a.Notice issued on September 21, 2020 is invalid as it was for a period of nine (9) days. Reference and application succeeds.b.I grant leave for the landlord to serve a new notice at the end of the month of November.c.Tenant to continue paying rent at the rate of Kshs 20,000 per month on or before the 10th of every month. In default, the landlord is at liberty to distress for rent.

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALJUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 8TH DAY OF NOVEMBER 2022 IN THE PRESENCE OF KISAKA FOR THE LANDLORD/ RESPONDENT AND NO APPEARANCE FOR TENANT/APPLICANT.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL