Alduchira Investment Company Ltd v Borabu Trading Company Ltd [2022] KEBPRT 870 (KLR)

Alduchira Investment Company Ltd v Borabu Trading Company Ltd (Tribunal Case E041 & E028 of 2022 (Consolidated)) [2022] KEBPRT 870 (KLR) (Commercial and Tax) (20 December 2022) (Ruling)

Neutral citation: [2022] KEBPRT 870 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Commercial and Tax

Tribunal Case E041 & E028 of 2022 (Consolidated)

Andrew Muma, Vice Chair

December 20, 2022

Between

Alduchira Investment Company Ltd

Tenant

and

Borabu Trading Company Ltd

Landlord

Ruling

A. Parties And Representatives 1. The applicant Alduchira Investment Company is the tenant and had rented space on the suit property known as plot No KRK 66 Kerugoya for the business. (hereinafter known as the ‘tenant’)

2. The firm of J.O Soire & Company Advocates represent the tenant/applicant in this matter. (Jeremiah.soire@yahoo.com )

3. The respondent Borabu Trading Company is the landlord and rented out space for the business in the suit property to the tenant. (hereinafter the ‘landlord’)

4. The firm of S.M Onyango & Associates Advocates represent the respondents in this matter.

B. The Dispute Background 5. The landlord issued the tenant with a notice to terminate tenancy dated May 20, 2022 which was to take effect on August 1, 2022. The notice was issued on the grounds that the landlord intended to demolish and reconstruct the premises and requires vacant possession in order to do so.

6. In response to the notice the tenant filed a reference dated June 2, 2022 under section 6 of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act cap 301 and a subsequent reference and notice of motion application dated August 4, 2022. The tenant opposed the notice issued by the landlord as well as seeking orders that the tribunal restrain the landlord from evicting the tenant and interfering with their peaceful occupation of the premises.

C. The Tenant’s Claim 7. The tenant filed a reference dated June 2, 2022 and a subsequent reference and notice of motion application dated August 4, 2022 to which they got orders restraining the landlord from harassing, threatening and evicting the tenant.

D. The Landlord’S Claim 8. The landlord has filed a replying affidavit in response to the tenant’s two references and application.

9. The parties have filed submissions and the matter was fixed for ruling on December 19, 2022.

E. List Of Issues For Determination 10. It is the contention of this tribunal that the issues raised for determination are as follows;I. Whether the termination of the tenancy by the landlord was valid?

F. Analysis And Findings Whether the termination notice issued by the landlord was valid? 11. Section 4(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act chapter 301 Laws of Kenya provides that;4(2)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.4(4)No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party

12. The above provision requires that before the landlord can terminate or alter the terms of a controlled tenancy, they must issue a notice of not less than two months to the tenant.

13. In the present case the landlord has averred that they issued the tenant with a notice on May 20, 2022 which was to take effect on August 1, 2022. As per the provisions of cap 301 above, the said notice can be deemed to be valid on the grounds that it satisfies the required period of two months.

14. I have also observed that the landlord has stated that the main reason for which they wish to terminate the tenancy is that they intend to demolish and reconstruct the premises. In an attempt to prove this, they have annexed two inspection reports from the Kisii County Government Department of Health.

15. Having perused the two reports it is evident that the landlord is required to renovate the premises. The current state of the premises is not suitable for occupation by the tenant. Additionally, the landlord has annexed building plans for their intended renovations.

16. In addition to the above, the landlord has provided before this tribunal and the tribunal notes the previous proceedings before the tribunal dating back to 2006 which have been determined and have little bearing on this case other than showing the age of their relationship it is worth noting that the tenant’s claims have been dismissed severally on the grounds that the tenant has failed to fulfill their obligation to pay rent.

17. In light of the foregoing, based on the validity of the notice as well as the two reports issued by the County Government Department of Health, I find that the tenant should hand over vacant possession of the premises back to the landlord to allow for the required renovations to be carried out.

G. Ordersa.The upshot is that the tenant’s references dated 2nd June and August 4, 2022 and the application dated August 4, 2022 are hereby dismissed in the following terms.b.The landlord’s application dated September 22, 2022, is hereby upheld.c.The notice issued by the landlord dated May 20, 2022 is hereby declared valid.d.The tenant shall grant the landlord vacant possession of the premises in the next 30 days in default landlord will be at liberty to reenter and take vacant possession of the suit premises.e.The landlord shall have costs assessed at Ksh 40,000/-

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon A. Muma this 20th Day of December 2022 in the presence of Nyakiangana for the Tenant and Oduor for the landlord,HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL