Athman Mohamed Sheikh v Joseph Mwangi Wahome [2021] KEBPRT 144 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E025  OF 2021  (NAIROBI)

ATHMAN MOHAMED SHEIKH......APPLICANT/LANDLORD

VERSUS

JOSEPH MWANGI WAHOME............RESPONDENT/TENANT

RULING

1. The Landlord filed an application dated 10th August 2021 seeking for an order to compel the tenant to vacate and handover vacant possession of the shop and/or space rented out to him in the business premises on plot no. L.R. 5054/117 Kilifi.

2. He further seeks that the OCS Kilifi Police Station do ensure compliance with the order.

3. The application is supported by the Applicant’s/Landlord’s affidavit of even date and the grounds set out on the face of the application.

4. The landlord issued a notice to terminate tenancy dated 29th April 2021 on the ground that he intends to carry out substantial work of construction on the premises that cannot be reasonably done without obtaining possession of the same.

5. The said notice was served upon the tenant on 4th May 2021 as per the affidavit of service marked ‘AMS-1’ which also attaches the termination notice.

6. The notice was expressed to take effect on 1st July 2021 and although the date is now past the Respondent did not vacate from the suit premises.

7. Their Tribunal by a letter dated ‘ASM-2’ confirmed that no reference was preferred against the said notice and the landlord now seeks for his delivery of vacant possession.

8. The application is opposed through a replying affidavit of the tenant sworn on 17th September 2021 wherein he deposes that he entered into a lease agreement marked ‘JM-1’ with heirs of the estate of the late father of the Applicant and the latter did not execute the same.

9. It is the tenant’s case that the Applicant cannot institute the proceedings without consulting the other landlords who signed the lease agreement being not a party thereto.

10. The tenant deposes that the other tenant in the building who runs a Safaricom shop has not been issued with notice to vacate and that the building is modern and does not require any repairs.

11. Letting marked ‘JM-3’ written by the Respondent’s landlords namely Omar Mohammed Sheikh Mohamed Yariya and Lulu Mohammed dated 5th September 2021 disowning the instant proceedings have been annexed to the replying affidavit.

12. The tenant further deposes that the Tribunal letter marked ‘ASM-2’ refers to one Ibrahim Ntoitha Mutwiri and not to him.

13. The tenant contends that the instant suit is activated with malice and the same should be dismissed with costs.

14. No further affidavit was filed by the tenant and as such the contents of the replying affidavit remain uncontroverted.

15. The issues for determination herein are:-

a. Whether the notice of termination of tenancy is valid or not,

b. Whether the Landlord is entitled to the reliefs sought.

c. Who is a liable to pay costs of the suit?

16. A landlord who wishes to terminate a controlled tenancy is required to give notice in the prescribed from upon the tenant under section 4 (2) of Cap. 301 Laws of Kenya.

17. No tenancy notice shall take effect until such date not being less than two months after receipt thereof by the receiving party under section 4(4) of the said Act.

18. Although the notice herein is in the prescribed form, it is said to have been served on 4th May 2021 so as to take effect on 1st July 2021 which is less than the prescribed 2 months.  It is therefore invalid by dint of section 4(4) of the said Act.

19. Secondly, no evidence has been tendered that the Applicant has any settled intention to undertake substantial work of construction on the premises that cannot be reasonable done without obtaining possession thereof in line with the decision in the case of Auto Engineering –vs- Gonella (1978) KLR 248.

20. I have looked at the tenancy agreement dated 1st August 2018 attached to the replying affidavit and note that the Applicant did not sign the same and cannot therefore pretend to terminate the tenancy without involving the people therein named as Landlords.  Three of them have disowned the instant proceedings.

21. It is therefore clear from the foregoing analysis that I am not convinced that the Applicant is entitled to the reliefs claimed in this suit.

22. In the premises, I proceed to make the following final orders:-

a. The notice of termination of tenancy dated 29th April 2021 is invalid and shall be of no effect.

b. The instant reference and application is hereby dismissed with costs to the Respondent/Tenant.

c. The Tenant’s costs are assessed at Kshs.25,000/- against the Applicant.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF NOVEMBER 2021

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Mwarandu holding brief for Lughse for Tenant