David Kinyua t/a Choice Wines & Spirits v Gladys Njeri Mugo [2021] KEBPRT 209 (KLR)

Full Case Text

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 60 OF 2020 (MERU)

DAVID KINYUA

T/A CHOICE WINES & SPIRITS ...TENANT/APPLICANT

AND

GLADYS NJERI MUGO........LANDLORD/RESPONDENT

RULING

Parties and Their Representative

1. The Tenant/ Applicant, David Kinyua, rented space on Plot No. 001/Block 1 Kenyatta Road Garissa for the business (herein after referred to as the ‘Tenant’)

2. Learned Counsel Kiunga Kingirwa & Co. Advocates represents the Tenant in this reference. kiungajustus@gmail.com

3. The Landlord/ Respondent Mary Njeri Mugo is the landlord and owner of suit premises on Plot No. 001/Block 1 Kenyatta Road Garissa rented out to the tenant (herein after referred to as the ‘Landlord’).

4. Learned Counsel Daniel Henry & Co. Advocates represents the Landlord/ Respondent. danielhenryadv@gmail.com

The Dispute Background

5. On or about 10th April 2018a lease agreement was reduced into writing between the Joseph Ngugi Mugo as the lessor and David Kinyua as the lessee wherein the landlord had agreed to lease out the premised being Plot No. 001/Block 1 Kenyatta Road Garissa from the 1st August 2018 for a term of five (5) years.

6. On 5th October 2020, the Landlord served a notice to terminate or Alteration of Tenancy as under section 4 (2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 to the Tenant with effect from 1st January 2021 on grounds that the Landlord sought to demolish all the houses on the premises/plot for purpose of using the land for private use.

7. On 1st December 2020, the Tenant moved this tribunal by way of a reference dated 1st December 2020 and a notice of motion under certificate filed on 3rd December 2020 under Section 6 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301, to oppose to the notice to terminate Tenancy and seeking amongst other orders quite enjoyment of the suit premises and stay of the notice to terminate tenancy dated 5th October 2020 by the Landlord pending hearing and determination of the application and reference. Further the tenant sought that the Tribunal gives a permanent injunction restraining the Respondent from harassing, intimidating, threatening to evict the Applicant herein until the lease terminates by effluxion of time on 1st August 2023.

8. This Tribunal granted orders to stay the execution of the Landlord’s notice to terminate tenancy dated 5th October 2020pending hearing and determination of this application on 4th December, 2020 the same is in force to date.

Jurisdiction

9. The Jurisdiction of this tribunal is in dispute.

The Tenant’s Claim

10. The tenant filed a reference dated 1st December 2020 together with a Notice of Motion application under certificate of urgency and supporting affidavit dated 1st December 2020 and written submissions on 30th April 2021, these pleadings form the basis of this claim.

11. The tenant obtained stay orders as against the landlord’s notice to terminate tenancy on 4th December 2020 and to date the landlord is still restrained from interfering with quite possession of the suit premises by the tenant either by closing or evicting the tenant. The basis of their claim is that the notice to vacate tenancy is malicious, unjustified and goes against the executed lease agreement of 10th April 2018.

The Landlord’s Claim

12. The landlord on the other hand have filed on 22nd March 2021 grounds of opposition and annexed a replying affidavit dated on 19th March 2021.

13. Parties filed written submission

14. I have had occasion to peruse the pleadings above-mentioned of both the Landlord and tenant and also the Landlords and Tenants written submissions and I will not rehearse the same again as they are brief and to the point.

15. I will refer to them in my analysis below where relevant and I thank parties for the same.

Matters not in Dispute

16. There is no dispute that the tenant paid rent on the suit premises at the time of the notice to terminate tenancy by the Landlord.

Issue for Determination

17. The parties raised certain issues for determination in their submissions and in their affidavits that centered on the key issue hereunder, therefore, the tribunal shall proceed to distill the key issue of contention discussed by parties and their counsels who submitted in writing as below:

Whether the Landlord’s Notice to Terminate the Tenancy as under section 4 (2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 to the tenant is correctly founded in the law?

Analysis and Findings

18. The pleadings emanate from the termination notice in the standard form A under Section 4(2) dated and filed on 5th October 2020. I have perused the said Notice and find that it states the grounds of termination of the tenancy as: “total demolition of all the houses on the premises/ plot for purposes of using the land for personal use”.

19. Section 4 (5) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act 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. Further section 7(f) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 provides the Grounds on which a landlord may seek to terminate tenancy; “that on the termination of the tenancy the landlord intends to demolish or reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises”

21. The Applicant on the other hand had moved to this Tribunal in 1st December 2020 to oppose the notice to terminate the tenancy served by the Landlord dated 5th October 2020 and contends that he is a protected tenant as in the said Agreement provided for a controlled tenancy that “The lease is for five (5) years and renewable….” and that the said notice was contrary to the executed lease between the parties.

22. Be it as it may, an eviction or termination notice is a germane issue and needs to be addressed in limine.

23. A landlord who wishes the Tribunal to consider and uphold its notice to alter or end tenancy on grounds of demolishing or reconstruction of premises needs to furnish and move the Tribunal with supporting evidence in addition where the Tenant has been irregular in paying rent evidence of rent arrears or that a similar notice has been issued to other tenants in the premises (if any) or that the Landlord has already obtained new plans for the development of the area such as City Council plans or that the Landlord has proof of funds to be used to rebuild the premise.

24. The Respondent on the other hand contends that there exist no valid lease Agreement between the Landlord and the Tenant and further avers that the purported Agreement dated 10th April, 2018 presented before the Tribunal by the Tenant is invalid and has no legal effect as it was signed by a third party unknown by her and therefore seeks the tribunal to uphold the notice to terminate tenancy. Be as it may it is worth noting the Landlord does not deny receiving rent on the premises in question.

25. I am guided by the decision of the High Court at Mombasa in the case of Al-Riaz International Limited v Ganjoni Properties Limited [2015] eKLR, where the Court stated as follows:

“In my view, the provisions of section 2 of Cap. 301 are clear. Thus, if a tenancy satisfies any of the conditions provided at section 2, the tenancy automatically becomes a controlled one and subject to the provisions of Cap. 301 ...

…The tenancy relationship between the parties herein was therefore a controlled one and subject to the provisions of Cap. 301. ”

26. The Tenant claims that they seek to be compensated of the costs of improvements done to the premises to a tune of Kshs. 200,000. However, no evidence has been adduced or filed to prove the same.

27. From the foregoing, it is my considered observation after looking at the notice of termination, I find that the Landlord in the present case has not given valid reasons and/or enough accompanying evidence to support the intended termination notice and therefore in absence of such the termination notice is therefore malicious and cannot be upheld by Tribunal.

28. The decision of the Tribunal is guided as under section 9 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301that “Upon a reference a Tribunal may, after such inquiry as may be required by or under this Act, or as it deems necessary—

a. approve the terms of the tenancy notice concerned, either in its entirety or subject to such amendment or alteration as the Tribunal thinks just having regard to all the circumstances of the case; or

b. order that the tenancy notice shall be of no effect;

c. and in either case make such further or other order as it thinks appropriate.”

29. That said it is incumbent upon this court to do justice to parties and not lay too much emphasis on technicalities it is on this ground that the tribunal addresses itself to the issue of the notice to terminate in the manner herein under enumerated.

Orders

For the reasons given above I ORDER as follows;

a. The Landlord’s Termination Notice dated 5th October 2020 is invalid and of no effect.

b. The Applicant/ Tenant’s Application dated 1st December 2020 is upheld.

c. The landlord is hereby restrained from interfering with quite possession of the suit premises by the tenant either by closing or evicting the tenant.

d. The Tenant to pay rent as and of when its falls due at the agreed monthly rate failure to which the landlord is at liberty to distress.

e. The reference by the Tenant dated 1st December 2021 is effectively compromised.

f. Each party to bear their own costs.

HON. A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 5TH DAY OF OCTOBER 2021 IN THE PRESENCE OF OPIYO HOLDING BRIEF FOR KIUNGA FOR THE TENANT AND IN THE ABSENCE OF THE LANDLORD. GAKII NYAMU PRESENT.

HON. A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL