Catherine Zawadi v John Masinjila Asila [2022] KEBPRT 115 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 153 OF 2020

CATHERINE ZAWADI.......................................................................TENANT/APPLICANT

VERSUS

JOHN MASINJILA ASILA......................................................LANDLORD/RESPONDENT

JUDGMENT

A. Parties and Representatives

1. The Applicant Catherine Zawadi is the Tenant and rented space on the suit property Block 2/155 Otiende situated within Kakamega Municipality (hereinafter known as the ‘Tenant”)

2. The Tenant/Applicant appears in person in this matter.

3. The Respondent John Masinjila Asila is the Landlord in the suit Property Block  2/155 Otiendesituated within Kakamega Municipality (hereinafter known as the ‘Landlord’)

4. The firm of Apollo Ambutsi & Co. Advocates represent the Respondent/Landlord in this matter.

B. The Dispute Background

5. The Landlord issued the Tenant with a termination notice dated 21st August 2020 on the grounds that they wanted to undertake renovation on the premises which required them to acquire vacant possession.

6. On 21st December 2020 the Tenant moved this Tribunal by way of reference and a notice of motion application dated 21st December 2020 under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Tenant was seeking amongst other orders that pending the hearing and determination of the reference that the Tribunal be pleased to give orders restraining the Landlord from evicting the tenant from the suit premises as well as an order rendering the termination notice dated 21st August 2020 illegal.

7. The Landlord/Respondent filed a replying affidavit and a preliminary objection on the grounds that the premises was a residential premise and in light of this the Tribunal lacked jurisdiction to determine the matter.

8. On 7th January the Court ordered that a Rent Inspector visit the premises and verify on the issue of use and occupation of the premises.

C. Jurisdiction

9. The Jurisdiction of this Tribunal is not in dispute.

D. The Landlord’s Claim

10. The Landlord issued the Tenant with a notice to terminate tenancy on 21st August 2020on the grounds that they wanted to carry out renovations.

11. The Landlord filed a replying affidavit and a preliminary objection dated 6th January 2021.

12. The Landlord filed a notice of motion application dated 17th February 2021.

E. The Tenant’s Claim

13. The Tenant has filed a reference and notice of motion application dated 21st August 2020and a further application dated 9th February 2021.

14. The Landlord has filed submissions and the matter was fixed for ruling on 14th January 2022.

F. List of Issues for Determination

15. It is the contention of this Tribunal that the issues raised for determination are as follows;

Whether the notice issued by the Landlord dated 21st August 2020 is valid and whether the are arrears owed to the Landlord.

G. Analysis and Findings

Whether the notice issued by the Landlord dated 21st August 2020 is valid and whether the are arrears owed to the Landlord.

16. Section 4 (2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Actprovides 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”.

17. Section 4(4) further 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, as shall be specified therein”.

18. Based on the above and after an analysis of the Landlord’s notice of termination dated 21st August 2020 the Tribunal is of the opinion that the notice was in the format prescribed under the above provision. The notice was issued on the 21st August 2020 and was to take effect from 1st November 2020.  The Notice was to take effect after two months as is required and the Landlord outlined t+he reasons for issuing the notice. As a result, the Tribunal is persuaded that the notice was valid under the provisions of Cap 301.

19. Section 4(5) of CAP 301provides that:

A tenancy notice shall not be effective for any of the purposes of this Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration or reassessment concerned and requires the receiving party to notify the requesting party in writing, within one month after the date of receipt of the notice, whether or not he agrees to comply with the notice

20. Section 6(1) of CAP 301 provides that;

“A receiving party who wishes to oppose a tenancy notice, and who has notified the requesting party under section 4(5) of this Act that he does not agree to comply with the tenancy notice, may, before the date upon which such notice is to take effect, refer the matter to a Tribunal, whereupon such notice shall be of no effect until, and subject to, the determination of the reference by the Tribunal: Provided that a Tribunal may, for sufficient reason and on such conditions as it may think fit, permit such a reference notwithstanding that the receiving party has not complied with any of the requirements of this section”.

21. It is the observation of this Tribunal that after receipt of the notice from the Landlord the Tenant did not comply with the above provisions. They did not inform the Landlord that they do not intend to comply with the notice and they did not file a reference before the Tribunal. Further they did not file an application seeking leave of the Tribunal for extension of time. The notice was issued on21st August 2020and the Tenant filed their application on21st December 2020.

22. The Tribunal has also observed that there was no report from the Rent Inspector with regards to the use and occupation of the premises. The Tribunal is however convinced that the premises qualify under Cap 301 as a business premise owing to the copies of the business permits and licenses provided by the Tenant. This goes to buttress the fact that the Tribunal is clothed with jurisdiction.

H. Orders

a) The upshot is that the Landlord’s application dated 17th February 2021 is hereby allowed in the following terms.

b) The Tenant shall pay rent arrears accrued during the pendency of this suit from the month of November 2021 within 30 days failure to which the Landlord shall be at liberty to distress.

c) The Tenant shall grant vacant possession to the Landlord within 6 Months failure to which the Landlord is at liberty to break in with the assistance of the OCS Kakamega Police Station.

d) Each party shall bear their own costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Judgement dated, signed and delivered virtually by Hon A. Muma this 14thday ofJanuary, 2022 in the absence of the parties.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL