Adida v Ndungu’s [2024] KEBPRT 127 (KLR)

Adida v Ndungu’s (Tribunal Case E821 of 2023) [2024] KEBPRT 127 (KLR) (Civ) (2 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 127 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E821 of 2023

M Makori, Member

February 2, 2024

Between

Joshua Adida

Applicant

and

Samuel Ndungu’s

Respondent

Ruling

1. The Tenant/Applicant instituted this claim vide a Notice of Motion Application dated 22nd August, 2023 challenging the eviction notice communicated verbally by the Respondent.

2. The Landlord/Respondent opposed the application vide a Replying Affidavit dated 19th September, 2023 and sworn by one Samuel Ndung’u and stated that it is the Tenant/Applicant who is in arrears.

3. The Tenant/Applicant aver the Landlord/Respondent threatened to evict him orally from the demised property despite the fact that the Tenant/Applicant has allegedly been paying rent

4. Aggrieved by the alleged decision to evict him through a word of mouth, he approached this Honourable Court for orders against the purported eviction and which facts were vehemently opposed by the Landlord/Respondent.

5. The Landlord/Respondent vide a Replying Affidavit dated 19th September, 2023 avers that the Tenant/Applicant has been in arrears of about Kshs 2,482,800/= and which fact was not refuted by the Tenant/Applicant.

6. From the foregoing and the pleadings filed by parties, the key issues for determination is Whether a word of mouth is legal valid and enforceable reasons to evict a tenant and what are the appropriate orders in the circumstances.

7. In addressing the first issues, I shall consider two aspects by which a notice to evict a tenant should have namely: the formal requirements of a notice for termination of a tenancy agreement and the Landlord’s grounds for termination of the tenancy.

8. For formal requirements of notice of termination of a tenancy I am guided by section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 Laws of Kenya (hereinafter referred to as the “Act”) 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 a tenancy, shall give notice in that behalf to the tenant in the prescribed form.”

9. Additionally, Section 4(4) 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, unless the terms and conditions of the tenancy provide for a period exceeding two months or the parties to the tenancy agree in writing to a lesser period of notice.

10. The two requirements therefore for a valid notice of termination of the tenancy is first, that the notice shall be in the prescribed form and secondly, that the notice shall not take effect until after expiry of two months, or such notice period as may be agreed by the parties. This was emphasized in the case of Munaver N Alibhai T/A Diani Boutique v South Coast Fitness & Sports Centre Limited[1995] eKLR, where the Court of Appeal at Mombasa in finding that the notice of termination of the tenancy was void for failing to comply with Section 4 of the Act stated as follows;“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The notice must also specify the grounds on which termination is sought. The prescribed notice in Form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice.”

11. Additionally, according to Section 4(2) mentioned above, the Notice of Termination of tenancy should be the prescribed form, specifically Form A, as provided for in the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Tribunal) (Forms and Procedure) Regulations, 1966.

12. The Landlord’s/Respondent’s verbal notice of termination of the tenancy was not in Form A prescribed by the Act. The notice of termination of the tenancy herein therefore does not meet the requirements of the Act with regard to being in a prescribed form.

13. According to Form A as provided in the Regulations above mentioned, the Landlord’s notice to terminate the terms of the Tenancy herein should have specified;a.The Landlord’s premises occupied by the Tenant;b.The duration of the notice of terminating the tenancy and the date when the notice is to take effect;c.The grounds for termination of the tenancy;d.The requirement that the Tenant should within one month notify the Landlord in writing whether or not the Tenant agrees to comply with the notice as from the date of receipt of the notice.

14. For Grounds for termination of the tenancy by the Landlord I am guided by the provision of section 4(1) of the Act provides that no tenancy shall be terminated, or no term or condition, or right or service enjoyed by the tenant shall be altered otherwise than in accordance with the provisions of the Act.

15. The Act further provides for the grounds on which the Landlord/Respondent may seek to terminate the tenancy in Section 7 Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 Laws of Kenya the grounds stated under this provision and which are applicable herein include;i.that the tenant has defaulted in paying rent for a period of two months after such rent has become due or payable or has persistently delayed in paying rent which has become due or payable;ii.that the tenant has committed other substantial breaches of his obligations under the tenancy, or for any other reason connected with the tenant’s use or management of the premises comprised in the tenancy; andiii.that on the termination of the tenancy the landlord intends to demolish or reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises;

16. From the totality of the pleadings filed by the parties, I am convinced that the Landlord/Respondent did not follow the correct procedure in evicting and/or attempting to evict the Tenant/Applicant.

17. On the appropriate order to grant being the second issue for determination, I note with much concern that the Landlord/ Respondent intimated that the Tenant/Applicant is in arrears of about Kshs 2,482,800/=. This fact was not refuted nor denied by the Applicant/Tenant and as thus it remains uncontroverted.

18. Before concluding this ruling, I wish to adopt what the superior court stated in the case of Samuel Kipkori Ngeno & Another – vs- Local Authorities Pension Trust (Registered Trustees) & Another (2013) eKLR at paragraphs 9 and 12 as follows: -“9. A tenant’s first and main obligation is to pay rent as and when it becomes due, for the Landlord has the right to an income from his investment….”12. The temporary injunction sought in the present application is an equitable remedy at the court’s discretion. He who comes to equity must come with clean hands. A tenant who is in huge arrears of rent is underserving the court’s discretion. The court cannot be the refuge of a tenant who fails to meet his principle obligation of paying rent as and when it becomes due”.

19. In the upshot and based on the foregoing the Tribunal find that the reference by the Tenant is merited and makes the following orders; -a.The Notice to vacate communicated orally by the on or about the 6th September, 2023 is null and void pursuant to Section 4 of Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 Laws of Kenya.b.The Respondent, his servants, agents or any other persons acting on his behalf are hereby restrained from evicting, closing or interfering with Applicant’s quite enjoyment of the subject property subject to the payment of agreed and/or Rent in Arrears in full by the Applicant/Tenant within Sixty 60 Days of this Ruling.c.In default of order (b) above, the Landlord/ Respondent shall be at liberty to levy for distress for rent in arrears.d.The OCS Pangani Police Station to ensure compliance with the orders of this Court.e.Each Party to bear its own costs.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY OF FEBRUARY 2024. HON. MIKE MAKORI (MR.) - MEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the absence of the parties