Alwi v Jumaan [2025] KEBPRT 250 (KLR)

Alwi v Jumaan (Tribunal Case E288 of 2024) [2025] KEBPRT 250 (KLR) (17 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 250 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E288 of 2024

J Osodo, Chair & Gakuhi Chege, Member

April 17, 2025

Between

Nae Mshitaki Abdulkadir Alwi

Applicant

and

Saddam Jumaan

Respondent

Ruling

A. Dispute background 1. The tenant moved this Tribunal vide a reference dated 16th December 2024 under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 with a complaint that the landlord/respondent had issued an illegal notice to terminate tenancy dated 15th November 2024.

2. The tenant filed a Notice of Motion under a Certificate of Urgency dated 16th December 2024 in which he sought for the following orders; -i.That the application be certified urgent.ii.That pending hearing inter-partes, the Tribunal restrains the landlord or his agents from unlawful eviction, victimizing, threatening, intimidation or any way whatsoever interfering with the applicant’s quiet possession and use of the premises.iii.That the landlord be temporarily restrained and prohibited from disturbing the applicant’s quiet enjoyment of the business premises.iv.That the notice to terminate tenancy issued on 15th November 2024 be declared defective.v.That the O.C.S Tononoka Police Station to ensure compliance of the orders.vi.That costs of the reference be borne by the respondent/landlord.

3. The tenant/applicant filed a supporting affidavit of even date in which he deposes that he runs a parcel shop on the premises and has been a tenant for over 5 years. That on 15th November 2024, the landlord allegedly entered his business premises without legal justification or proper notice and issued a one-day eviction notice, which he has attached as evidence.

4. The tenant further deposes that despite facing business hardships, he has consistently paid rent of KES. 32,000 every month. He argues that the landlord's actions are unlawful, made in bad faith, and intended to disrupt his livelihood.

5. On 18th December 2024, the Tribunal issued interim orders of injunction against the landlord/respondent.

6. The landlord/respondent filed a replying affidavit dated 25th January 2025 in which he deposes that the notice to vacate issued on 15th November 2024 was intended to cover the legally required three-month period, not one day as alleged by the tenant.

7. The landlord in the affidavit further denies the tenant’s claim of consistent rent payments, stating that he often had to remind him to pay rent. He deposes that the tenant's current rent of Ksh 32,000 is below market rates for similar shops and that both parties had agreed to a rent increment to Ksh 45,000 starting January 2025, which was the basis for taking the matter to court.

8. Additionally, he accuses the tenant of interfering with the structural integrity of the building by knocking down walls without his consent and of subletting part of the premises to another person for profit, which he deems illegal and contrary to their agreement.

9. At a court hearing on 10th February 2025, parties were ordered to canvass the matter by way of written submissions. Only the tenant complied by filing his submissions dated 12th March 2025. We shall consider the written submissions while dealing with the issues for determination.

B. Issues for Determination 10. The following are issues for determination; -a.Whether the notice to terminate tenancy dated 15th November 2024 is valid and legal.b.Whether the tenant is entitled to the orders sought in the application dated 16th December 2024. c.Who shall bear the costs of the application?

Issue (a) Whether the notice to terminate tenancy dated 15th November 2024 is valid and legal. 11. The tenant/applicant approached this Tribunal seeking for orders to restrain the landlord from evicting or interfering with his peaceful occupation of the suit premises.

12. In the case of Manaver N Alibhai t/a Diani Boutique – vs- South Coast Fitness & Sports Centre Limited Civil Appeal No. 203 of 1994, it was held as follows: -“The Act lays down clearly 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 ground upon 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.”

13. In the instant case, the landlord/respondent issued the tenant with notice to vacate the suit premises dated 15th November 2024 which we have perused and have found that the same gives the tenant only 1 day notice to vacate the premises.

14. The landlord in his replying affidavit has stated that the said notice gives the tenant 3 months to vacate the suit premises which is th November 2024. contrary to the date indicated in the said notice, which indicates that the same is due to take effect on 15

15. Consequently, the Tribunal finds that the notice to terminate tenancy dated 15th November 2024 failed to provide the statutory minimum period of two months' notice and is therefore declared defective and of no legal effect.

Issue (b) Whether the tenant is entitled to the orders sought in the application dated 16th December 2024. 16. The tenant approached this Tribunal seeking protection from the landlord’s illegal eviction and disturbance at the suit premises.

17. As observed above, the notice to terminate tenancy dated 15th November 2024 has been declared illegal and based on the facts, the law, and the submissions presented, we are persuaded that the tenant has established a prima facie case and is deserving of the protection of this Tribunal from unlawful eviction, harassment, and interference with the quiet enjoyment of the business premises.

18. Accordingly, the Tribunal finds that the tenant is entitled to the prayers sought in the application dated 16th December 2024

Issue (c) Who shall bear the costs of the application? 19. Under Section 12(1)(k) of Cap. 301, Laws of Kenya, costs of any suit before this tribunal are in its discretion but always follow the event unless for good reasons otherwise ordered. We shall order costs of the application to the tenant/applicant.

C. Orders 20. In conclusion, the following orders commend to us-a.The notice to terminate tenancy dated 15th November 2024 is declared illegal.b.The application dated 16th December 2024 is hereby allowed as prayed.c.The landlord is at liberty to issue a fresh Notice to terminate tenancy in accordance with Cap 301 Laws of Kenya.d.The reference dated 16th December 2024 is settled in terms.e.Costs of KES. 25,000 to the tenant/applicant to be offset against the rent account.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17th DAY of APRIL 2025. HON. JOYCE AKINYI OSODO - (PANEL CHAIRPERSON)HON GAKUHI CHEGE - (PANEL MEMBER)BUSINESS PREMISES RENT TRIBUNALIn the presence of:Parties absent