[2022] KEBPRT 881 (KLR)

Wanjiru v Rakwa (Tribunal Case E077 of 2022) [2022] KEBPRT 881 (KLR) (Civ) (14 December 2022) (Ruling)

Neutral citation: [2022] KEBPRT 881 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E077 of 2022

Gakuhi Chege, Vice Chair

December 14, 2022

Between

Ruth Wanjiru

Applicant

and

Jackson Rakwa

Respondent

Ruling

1. Through a complaint dated June 17, 2022, the tenant moved this Tribunal under section 12(4) of Cap. 301, Laws of Kenya claiming that the landlord issued her with an illegal and defective notice to vacate the business premises contrary to section 4(2) of the said Act. She therefore seeks that the landlord be restrained from illegal termination of her tenancy and illegal eviction from the premises.

2. The tenant contemporaneously filed a motion dated June 20, 2022 seeking restraining orders against the Landlord from evicting, harassing, intimidating and interfering with her peaceful occupation of the premises situated at Plot no. 72, Masai Mara-Talek, Narok Town.

3. On April 4, 2022, the landlord issued a notice to the tenant seeking that she vacates the suit premises by July 2022 to enable renovation scheduled to start on July 4, 2022.

4. Fearing possible eviction, the tenant moved to this Tribunal and obtained an interim order of injunction on June 22, 2022. The matter was listed for hearing inter-partes on August 2, 2022.

5. The Respondent did not upload the replying affidavit on the CTS portal despite paying for it together with annexures. What I have seen on record is a supplementary affidavit sworn on November 6, 2022 and submissions dated the same day. I will look at the said documents.

6. On the other hand, the tenant filed a further affidavit sworn on September 15, 2022 in which she states that other tenants within the landlord’s building had not been issued with notices to vacate for purposes of renovation.

7. According to the tenant, the renovations required were of a minor nature on the roof which did not necessitate her to vacate the suit premises or even close the business as the same can be carried out on room to room basis. No building plans or consents had been obtained.

8. On his part, the landlord in his supplementary affidavit acknowledges having issued the impugned notice dated April 4, 2022 and that the tenant ought to have looked for alternative premises. He contends that the notice does not offend the provisions of section 4(2) of Cap. 301, Laws of Kenya.

9. I am therefore required to determine the following issues:-a.Whether the notice served upon the tenant is valid.b.Whether the tenant is entitled to the reliefs sought in the complaint and application.c.Who is liable to pay costs of the case?

10. This case was provoked by the notice dated April 4, 2022 in which the landlord required the tenant to vacate the suit premises to enable him start renovations by July 4, 2022.

11. Section 4(2) of Cap. 301, Laws of Kenya requires any landlord who intends to alter to the detriment of the tenant any term or condition in or right or service enjoyed by the tenant under such tenancy to give notice in that behalf to the tenant in the prescribed form.

12. I note that the notice served upon the tenant herein is not in the prescribed form and is thus defective, null and void for all purposes.

13. In the case of Pritam -vs- Ratilal (1972) EA 560 at page 562, it was held that the landlord and Tenant (Shops, Hotels and Catering Establishments) Act is an Act of Parliament to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto.

14. In the case of Fredrick Mutua Mulinge T/A Kitui Uniform – vs- Kitui Teachers Housing Cooperative Society Limited (2017) eKLR, the court cited several decisions and proceeded to hold that any departure from the provisions of the said Act makes the notice defective and ineffective.

15. The landlord submits that his notice complies with section 4 as the notice was timely as it gave 90 days as opposed to two (2) months stipulated in the Act. The period according to the landlord was sufficient and the tenant ought to have vacated the premises to allow repair and renovation to take place. He cites section 7(1) of Cap. 301 to justify the grounds on the notice to vacate and the case of Musyoki t/a Konza Merchants – vs- Wayua Mutisya Kinuthya & Another being Civil Appeal No. 3 of 2002.

16. I have considered all the arguments in this case and I am not persuaded that the landlord’s notice meets the requirements of section 4(2) of Cap. 301 and is as such a candidate for being declared invalid.

17. On the second issue, I am persuaded that the tenant faced with threats of possible eviction was entitled to come to this Tribunal to seek for protection. The nature of injunction sought herein is what is commonly referred to as a quia timet injunction which was expounded in the case of Kwality Candies & Sweet Ltd – vs- Industrial Development Bank Ltd (2005) eKLR at page 6-7/11 wherein the English case of Craicola Merthyh Co. Ltd vs Mayor Aldermen & Burgessess of Swansea (1927) L.R 233 was cited as follows:-“A quia timet action is not based upon hypothetical facts for the decision of an abstract question. When the court has before it evidence sufficient to establish that an injury will be done if there is no intervention by the court, It will act at once and protect the rights of the party who is in fear and thus supply the need of what has been termed protective justice. It is a very old principle”.

18. In the premises, I shall confirm the orders of injunction given on interim basis in favour of the tenant but allow the landlord to serve a proper notice under the Act.

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

20. Section 12(4) of Cap. 301, Laws of Kenya gives this Tribunal power upon investigating any complaint brought by a landlord or tenant to make such order thereon as it may deem fit. This ruling shall apply to the complaint which raises the same issues as the application.

21. In conclusion, the following final orders commend to me in this matter:-a.The landlord’s notice to vacate dated April 4, 2022 is hereby declared invalid and of no legal effect.b.The tenant is granted an injunction against the landlord from eviction, harassment, intimidation and interference with her peaceful occupation of the suit premises situate on plot no. 72, Masai Mara- Tarek, Narok Town without complying with provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap. 301 Laws of Kenya.c.The landlord is granted leave to issue a proper notice upon the tenant under Cap. 301, Laws of Kenya.d.The tenant is awarded costs of the case assessed at Kshs.25,000/- to be offset against the rent account.It is so ordered.

RULING SIGNED, DATED & VIRTUALLY DELIVERED THIS 14TH DAY OF DECEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling read in the presence ofMiss Chepkimoi for the LandlordMburu S.K. for the Tenant