[2022] KEBPRT 669 (KLR)

Wanjiru v Gathogo & another (Tribunal Case E023 of 2022) [2022] KEBPRT 669 (KLR) (Civ) (2 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 669 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E023 of 2022

Gakuhi Chege, Vice Chair

September 2, 2022

Between

Judy Wanjiru

Applicant

and

Ruth Nyawira Gathogo

1st Respondent

Sawata Investments Limited

2nd Respondent

Ruling

1. The tenant herein filed a complaint under section 12(4) of cap301 wherein she contends that the respondents served her with a defective notice to vacate the suit premises and threatened to evict her therefrom without any apparent reason contrary to a mutual tenancy agreement between them.

2. The tenant further contends that she has done developments in the business premises that will greatly affect her business should the notice to vacate stand. The said complaint is dated February 17, 2022.

3. The tenant simultaneously filed a motion of even date seeking that the respondent’s defective notice be nullified and that she be allowed to continue operating her business. She also seeks for restraining orders against the respondents from interfering with her tenancy in the suit premises.

4. The tenant has attached as annexure to the supporting affidavit a notice dated February 15, 2022 by the 2nd respondent to vacate from the suit premises by May 15, 2022 as the landlord requires her two rooms that the tenant was occupying.

5. Fearing possible eviction from the suit premises, the applicant came to this Tribunal and obtained interim orders on February 22, 2022.

6. On March 10, 2022, the tenant filed yet another application challenging a subsequent notice dated March 7, 2022 in which the landlord sought to terminate her tenancy with effect from June 1, 2022 on grounds that she desired to use the premises for a period of not less than two (2) years. The said notice is challenged on the basis that it was issued in contempt of the court orders given herein on February 25, 2022.

7. The tenant therefore seeks that the second notice be nullified and the respondents restrained from interfering with her tenancy over the suit premises.

8. On March 23, 2022, this tribunal issued interim orders in terms of the application dated March 10, 2022.

9. The 1st respondent filed a replying affidavit sworn on May 13, 2022 in opposition to the application dated February 17, 2022 wherein she deposes that the tenant has continued to refuse payment of rent as per their tenancy agreement with no good reasons. She also complains that the tenant had erected some illegal structures infront of the suit premises without her consent.

10. The 1st respondent therefore seeks that this court upholds her notice of termination of tenancy to pave way for her intended personal use of the suit premises for a period of not less than two years.

11. The 1st respondent filed a supporting sworn on June 20, 2022 stating that the tenant leased the premises for wines and spirits business but constructed other structures within the corridors without her consent.

12. The landlord contends that the tenant pays rent with difficulty via Mpesa contrary to their agreement to pay by 5th of every month. She had converted the business into “a full operational nightclub” disregarding residential tenants in the building by causing nuisance therein.

13. The application dated March 10, 2022 was ordered to be canvassed through written submissions and both parties complied. I will consider the submissions together with the issues for determination set out below.

14. The issues for determination in this case are:-a.Whether the respondents notices dated February 15, 2022 and March 7, 2022 are valid or invalid.b.Whether the tenant is entitled to the reliefs sought in the complaint and applications dated February 17, 2022 and March 7, 2022. c.Who is liable to pay costs of the complaint and the application?

15. Section 4(2) of cap301 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 tenancy shall give notice in that behalf to the tenant in the prescribed form.

16. The prescribed form of the notice envisaged under the said provision of the law is provided under regulation 5 of the Tribunals Regulations.

17. I have examined the notice dated February 15, 2022 by the 2nd respondent/agent and find that it is not in the prescribed form and is therefore invalid in line with the decision in the case of Fredrick Mutua Mulinge t/a Kitui Uniform v Kitui Teachers Housing Cooperative Society Limited [2017] eKLR wherein the superior court held as much citing several other decisions on the issue.

18. In regard to the notice to terminate tenancy dated March 7, 2022, the same is in the prescribed form. However, it was served in the pendency of this complaint and against the tribunal orders of February 24, 2022 without leave to do so. To that extent, the notice is also improper as the same was intended to defeat the instant proceedings as the matter of termination of the tenant’s tenancy was live and being litigated upon in this tribunal when the same was served.

19. Secondly, the reasons given in the notice for termination of tenancy do not appear to be genuine considering the fact that in her replying affidavit sworn on May 13, 2022, she accuses the tenant of refusal to pay rent as per tenancy agreement without stating how much rent was in arrears. She also claims therein that the tenant had erected illegal structures infront of the premises without her consent.

20. The kind of use the landlord intends to put the premises is not stated in her affidavits. Again, in her supplementary affidavit sworn on June 20, 2022, the landlord complains about change of user of the business premises from wines and spirits into a night club and nuisance to other residents/tenants occupying the residential premises in the buildings.

21. The contradictions in the said affidavits on the reasons for requiring vacant possession by the landlord leads to my conclusion that the notice to terminate tenancy is not genuine and even if I was to hold that the same was properly issued notwithstanding the tribunal orders of February 22, 2022, the notice cannot be upheld.

22. In the case of Eldomart Holdings Limited v Ticket Company Limited [2019] eKLR, it was held as follows:-“The legislature left no doubt that the Act was enacted for the purposes of protecting tenants. This court must have the said objective in mind while interpreting the Act. The burden was upon the appellant to establish that it had an intention of occupying the suit premises for a period of not less than one year for the purposes of own business. In the case of Auto Engineering v Gonella [1978] eKLR, it was held that the onus is on the landlord to establish a firm and settled intention to occupy the premises held by the tenant”.

23. I am not satisfied in the present case that the landlord has been able to discharge her burden of proof that she intends to occupy the suit premises for own business. The notice is thus a candidate for dismissal for that reason.

24. On the second issue as to whether the tenant is entitled to the reliefs sought in the complaint and the applications dated February 17, 2022 and March 7, 2022, I note that the two notices served upon the tenant have been found not to be properly founded in law or fact. It therefore means that the applicant has established a prima facie case with a probability of success in line with the decision in Giella v Cassman Brown & Co Ltd (1973) EA 358.

25. Secondly, if the tenant did not file the instant complaint against the landlord and agent, she would have been evicted from the suit premises on expiry of the first notice which was expressed to take effect on May 15, 2022. The notice having been declared invalid could not have been legally enforced and as such the tenant’s fear of an illegal eviction was well founded. The nature of injunction sought is a ‘quia timet’ injunction which the court is entitled to grant where the applicant provides evidence sufficient to establish that an injury will be done if there is no intervention by the court. In such a case, the court is required to act at once and protect the rights of the party who is in fear and supply the need of what has been termed as protective justice (see the case of Kwality Candies and Sweet Limited v Industrial Development Bank Limited [2005] eKLR.

26. I need not consider the third principle of injunction as the balance of convenience tilts in favour of protecting the tenant against illegal eviction which is the objective of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, cap 301, laws of Kenya.

27. As regards costs, the same are in the Tribunal’s discretion under section 12 (1) (k) of cap 301, laws of Kenya but will always follow the event unless for good reasons otherwise ordered. I have no reasons to deny the tenant costs.

28. In conclusion therefore, the final orders that commend to me are:-i.The tenant’s complaint dated February 17, 2022 and the applications dated February 17, 2022 and March 23, 2022 are hereby allowed with costs.ii.The landlord and her agents, servants or any other person claiming under her are hereby restrained by way of injunction from evicting, harassing, intimidating or in any other manner interfering with the tenant’s use and occupation of the demised premises without following the provisions of the landlord and Tenant (Shops, Hotels and Catering Establishments) Act cap 301, laws of Kenya.iii.The tenant shall continue paying the monthly rent for the demised premises on or before the 5th day of each month without fail.iv.The notices to terminate tenancy dated February 15, 2022 and March 7, 2022 are hereby dismissed.v.The landlord shall pay Kshs 10,000/- to the tenant as costs of the case and in default, the same shall be defrayed against the rent account.

It is so ordered.RULING DATED, SINGED AND DELIVERED VIRTUALLY THIS 2ND DAY OF SEPTEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Tenant/Applicant presentNo appearance for the landlord.