Board of Directors of Divine Word Boys High School v Katani Medical Centre [2022] KEBPRT 682 (KLR)

Board of Directors of Divine Word Boys High School v Katani Medical Centre (Tribunal Case E263 of 2022) [2022] KEBPRT 682 (KLR) (5 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 682 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E263 of 2022

Gakuhi Chege, Vice Chair

September 5, 2022

VIEW PARK TOWERS 7TH & 8TH FLOOR

Between

Board of Directors of Divine Word Boys High School

Applicant

and

Katani Medical Centre

Respondent

Ruling

1. The landlord herein filed a reference under section 12 (4) of Cap. 301, Laws of Kenya based on a complaint on termination of tenancy on the grounds that it wants to expand the school and that the tenant despite being served with notice to terminate tenancy in the prescribed form had neither vacated nor filed a reference.

2. The landlord simultaneously filed a motion dated 14th March 2022 seeking an order for termination of the tenant’s tenancy within Divine Boys High School pending the hearing and determination of the reference together with an order for the tenant to vacate the premises and that the OCS Mlolongo Police Station do maintain peace and order during the eviction process.

3. The supporting affidavit to the application was sworn on 14th March 2022 by FR. Geoffrey Ndungu SVD wherein he deposes that the landlord wishes to terminate the tenant’s tenancy since they wish to expand the school on the said premises and that the tenant had been given sufficient notice to vacate the premises.

4. It is important to note that the notice alluded to by the landlord is not attached to the supporting affidavit of the applicant.

5. The application is opposed through a replying affidavit sworn on 13th May 2022 by Robert Ondoro on behalf of the Respondent who denies knowledge of the notice of termination of tenancy. The deponent deposes that the only notice in the Respondent’s possession is one dated 1st June 2021 to the effect that the contract had not been renewed as the reason for termination marked “R.O-1”.

6. The Respondent wrote a letter dated 23rd June 2021 seeking reasons for the said termination which were never given.

7. The Respondent deposes that the notice marked ‘R0-1’ is irregular and not in conformity with section 4 of Cap. 301, Laws of Kenya.

8. Despite failure to renew the contract, the Respondent deposes that it had continued to pay rent and was up to date as evidenced by annexure ‘R0-3’.

9. In a further affidavit by FR. Geoffrey Ndungu SVD sworn on 28th May 2022, the landlord deposes that it issued the tenant with notice in the prescribed form on 1st October 2021 which they declined to endorse receipt of. The alleged notice marked ‘TA 3’ was neither annexed nor uploaded on the “CTS Portal which has been checked before this ruling.

10. The landlord admits that the tenant has never defaulted in rent payment but the premises were being repossessed for purposes of expansion of the school and the tenant could not compel it to renew the tenancy agreement.

11. I am now required to determine the following issues:-i.Whether the landlord served notice to terminate tenancy upon the tenant under section 4 of Cap. 301, Laws of Kenya.ii.Whether the landlord is entitled to the reliefs sought in the reference and application dated 14th March 2022. iii.Who is liable to pay costs?.

12. The landlord through the application dated 14th March 2022 and the reference of even date seeks to terminate the tenant’s tenancy and possession of the demised premises. However, the landlord has not exhibited the tenancy notice nor even an affidavit of service despite purporting to have done so through annexure “TA3” which was not uploaded on the CTS Portal as required.

13. It is trite law and indeed the tenor of section 107 (c ) of Cap. 80 (Evidence Act) that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. In absence of the notice to terminate tenancy issued under section 4(2) of Cap. 301, there is no way this Tribunal can order vacant possession against the tenant.

14. The tenant has stated that the only notice received from the landlord is the one dated 1st June 2021 marked ‘R0-1’ attached to the replying affidavit of Robert Ondoro. The same is referenced “Notice of termination of the tenancy over the Dispensary Building”. In absence of a different notice to controvert what was presented by the tenant, I tend to believe that the landlord’s case is predicated on the said notice which explains why the latter was shy to exhibit it.

15. The notice marked ‘RO-1’ is not in the prescribed form and is as such defective for failure to comply with section 4 of Cap. 301, Laws of Kenya.

16. Although counsel for the landlord submits that the landlord issued the requisite notice on 1st October 2021 which was expiring on 1st January 2022, the same is not exhibited. There is no affidavit of service to show how it was served upon the tenant in line with section 4(6) of Cap. 301 cited by the landlord’s counsel. How could the tenant be expected to file a reference against a non -existent notice?.

17. In absence of the alleged notice, this Tribunal cannot consider whether or not the landlord is entitled to vacant possession of the suit premises.

18. If, as the landlord submits, the tenancy agreement expired on 31st December 2019 and it was not renewed and the landlord continued to accept rent, a periodic tenancy was created by dint of section 60(2) of the Land Act, 2012 and the landlord is enjoined to comply with section 4 of Cap. 301 to obtain vacant possession.

19. In the premises, I find and hold that the landlord has miserably failed to prove that it served notice to terminate tenancy upon the tenant and consequently, the landlord is not entitled to the reliefs sought in the reference and application dated 14th March 2022.

20. As to who is liable to pay costs, the decision is in the Tribunal’s discretion under section 12(1) (k) of Cap. 301, Laws of Kenya but costs always follow the event unless for good reasons otherwise ordered. I have no reasons to deny the tenant costs of the reference.

21. In conclusion, the final orders in this matter are:-i.The landlord’s reference and application dated 14th March 2022 is hereby dismissed with costs.ii.The tenant’s costs against the landlord is assessed in the sum of Kshs.25,000/- all inclusive to be defrayed against rent account if not paid within Thirty (30) days hereof.It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 5TH DAY OF SEPTEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of:Miss Mwandumbo for the Landlord.Ayugi for the Tenant