Electronic Air Systems Ltd v Vj Kj Rai Kundalia [2021] KEBPRT 469 (KLR) | Controlled Tenancy | Esheria

Electronic Air Systems Ltd v Vj Kj Rai Kundalia [2021] KEBPRT 469 (KLR)

Full Case Text

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 233 OF 2020 (NAIROBI)

ELECTRONIC AIR SYSTEMS LTD.....TENANT/APPLICANT

VERSUS

VJ KJ RAI KUNDALIA...............LANDLORDS/RESPONDENT

RULING

The parties herein filed a consent on 22nd July 2020 wherein it was agreed that the application dated 26th May 2020 and the reference dated 28th February 2020 be considered and the written submissions filed by the parties be construed for both the reference and the application.  That on the basis of the submissions, judgment be issued and further hearings be dispensed with.

The Landlords herein filed a Landlord’s notice to terminate or alter terms of tenancy against the Tenant on 28th February 2020.  The notice to terminate is the one dated 22nd January 2020 and was effective 1st April 2020.  On 28th February 2020, the Tenant filed a reference by Tenant to Tribunal, hereby opposing the Landlord’s notice to terminate.

The Landlord’s notice of motion dated 26th May 2020 seeks a determination that the notice to terminate tenancy dated 22nd January 2020 was proper and the Tenant vacates the premises.  It further seeks an order that the Landlord takes possession and the OCS Nairobi Central Police Station to assist the Landlord in evicting the Tenant.

The grounds upon which the application is brought may be summarized as follows;

1. That an earlier notice of termination against the same Tenant was withdrawn.

2. That the Landlord has issued a notice of termination of tenancy against the Tenant dated22nd January 2020. The same has been opposed by a reference.

3. The Landlord who operates Truck Turners Ltd, a retail spare parts shop is in need of more space for storage of its spare parts.

4. The Landlords intend to use the space occupied by the Tenant for the purpose of their inventory and storage.

5. The failure to secure the premises will mean that the Landlord will have to seek for alternative storage facilities.

6. The Landlord has been conducting the business of Truck Turners Ltd for more than five years before the termination notice issued on 22nd January 2020.

The affidavit in support of the Landlord’s application replicates the grounds in support of the said application.  I have read the same and I do not need to summarize the same here.

The Tenant has opposed the application by his affidavit sworn on 3rd June 2020.  It may be summarized as follows;

1. That the Tenant has been in the premises since 1982 and stands to suffer immense losses if the Landlord recovers possession.

2. The notice to vacate is irregular, illegal and malicious.

3. That indeed Truck Turner Ltd has moved to the premises in Industrial Area and rented out its space to Sam Livo Auto Spares.

4. That the true intention of the notice is to surrender the whole premises to Sam Livo Auto Spares.

5. That the suit premises is jointly owned by Karunkumar Jivanlal Devji Raikundalia and Vinochandra Jivan Devji Raikundalia and not Truck Turner Limited.

The Landlord’s submissions may be summarized as follows;

1. That the termination of the tenancy is pursuant to the requirement of space by the Landlord’s business, Truck Turners Ltd.

2. That the Landlord’s notice to terminate the tenancy has been issued in the proper form.  The Landlord has a right to issue such a notice.

3. That the business permit from Nairobi City Council clearly indicates the location of the Landlord’s business.

4. That the photographs of Sam Livo Auto Spares exhibited by the Tenant have no evidence of the location of the said business.

5. That the certificate of incorporation of Truck Turners Ltd clearly shows the Landlord as owner of half of the said company.

6. That the Landlord has been running Truck Turners Ltd in which he has interest for more than five years preceding the notice and wishes to occupy the premises to which he has issued the notice.

6. The allegation that Truck Turners is not the Landlord is a mis-reading of the law as the Landlord herein only needs to establish an interest.

7. That the Tenant has never taken any steps to prosecute his reference.

8. That the notice of termination is not premised on non payment of rent.

The Tenant’s Submissions in Summary

1. The Tenant seems to have adopted the contents of its replying affidavit as its submissions.  I will therefore not restate the contents here.

2. The Landlord has not satisfied the grounds of termination as prescribed under section.7 of Cap 301.

3. The Landlords have no intent to use the premises for their use whatsoever as purported.

4. The Landlord’s notice be declared irregular, illegal and null and void.

In my view, the issues arising for determination in this case are the following;

1. Whether there exists a Landlord/Tenant relationship between the parties herein.

2. Whether the Landlord herein has issued to the Tenant a valid Landlord’s notice to terminate/alter terms of tenancy.

3. Whether the Landlord has satisfied the requirements of section 7 (1) (g) and (2) of Cap 301 of the Laws of Kenya.

4. What are the most appropriate orders in the circumstances?

From the generality of the pleadings, I find that none of the parties has denied the existence of a Landlord/Tenant relationship between them.  Paragraph 4, 5 and 6 of the Tenant’s replying affidavit sworn on 3rd June 2020confirms the existence of this relationship.  I will therefore proceed on the basis that indeed there exists a Tenant/Landlord relationship between the parties herein;

Section 4(2) of Cap 301 is in the following terms;

“A Landlord who wants to terminate a controlled tenancy or to alter to the detriment of the Tenant any term or condition on, 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.”

Section 4(4) No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party as specified therein.”

Section 4(5) “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 re-assessment 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.”

The Landlord’s notice to terminate tenancy is dated 22nd January 2020.  It is in the prescribed form, it gives the effective date as 1st April 2020 and therefore satisfies the “not being less than two months…” requirement under the Act.  The grounds upon which the Landlord seeks to terminate the tenancy have been set out in the notice, they are clear and unambiguous.  The filing of the reference to Tribunal by the Tenant is clear indication that the Tenant was served with the notice to terminate.

I therefore do find that the notice to terminate tenancy by the Landlord in this case is valid.  The Tenant has alleged that the notice to terminate is irregular, illegal, null and void and malicious.  Other than a mere statement of the above, the Tenant has not placed any material before me in support of his allegation, I dismiss the same.

The Landlord has stated at paragraph 10 of the supporting affidavit that Truck Turners Ltd and the Tenant occupy the same building.  Truck Turners Ltd occupies the rear side of the building.  The business permit annexed to the Landlord’s affidavit indicates that Truck Turners Ltd is in the business of retail of motor vehicle spare parts and its address is indicates as plot No. 209/136/145.  This is the same plot indicated as the premises in the Landlord’s notice to terminate the tenancy herein.

The Landlord has also annexed to his affidavit the certificate of incorporation of Truck Turners Ltd the same was issued on 3rd April 1984.  The annexed CR12 for Truck Turners Ltd indicated Amit Karunkumar Raikundaha and Karunkumar Jivanlal Devji Raikundalia as the directors and shareholders of the said company.

The Landlord herein has thus established his interest in the entity known as Truck Turners Ltd.  It is clear he is involved in its business on plot No. 209/136/145 wherein the Tenant also operates its business.

The Landlord has stated that he needs more space for the storage of his spare parts in the business carried out by Truck Turners Ltd and that further that if the space is not freed, he may have to seek alternative storage for his spare parts.  The Tenant’s challenge to this statement by the Landlord is to be found at paragraph 7 of his replying affidavit in which he states that the company Truck Turners Ltd has moved to its own premises in Industrial Area.

At paragraph 8 he states that Sam Livos Auto Spares actually occupy the premises where Truck Turners used to be located, and the intention of the Landlord is to actually surrender the whole premises to Sam Livos Auto Spares.  The Tenant has not placed any material before the Tribunal to prove/establish his allegations that Truck Turners Ltd have indeed moved to their own premises in Industrial area neither have the photographs of a building showing Sam Livos Auto Spares been linked with the premises known as Plot No. 209/136/145 the subject matter of the notice to terminate.

I am satisfied on the evidence that the Landlord has demonstrated that he, indeed, through his directorship and shareholding in Truck Turners Ltd, carries on the business of spare parts on land/plot No. 209/136/145 (see the business part).

I am also satisfied that the Tenant occupies the same building with the Landlord’s company, Truck Turners Ltd.  The Landlords need for extra space for its storage facilities has not been challenged.  The Tenant’s allegation that the Landlord’s company, Truck Turners Ltd is not on the suit premises is not supported by any evidence, especially on the face of the business permit exhibited by the Landlord and which the Tenant has not challenged in any way.

The disclosed interest of the Landlord would be traced to the registration of the company in 1984.  He has indeed operated the company’s business for over thirty-five years according to his averments in the application.  This too has not been challenged by the Tenant.

On the issues raised by myself for determination, I therefore do find that;

1. There exists a Tenant/Landlord relationship between the parties herein.

2. The notice to terminate tenancy issued to the Tenant by the Landlord is valid, legal and statutory proper.

3. The Landlord has satisfied the requirements of section 7(1)(g) and (2) of Cap 301 of the Laws of Kenya.

That in these circumstances and in view of the findings above, I do make the following orders;

1. The Landlord’s application dated 26th May 2020 is allowed.

2. The Tenant’s reference dated 28th February 2020 is hereby dismissed.

3. The Tenant is granted sixty days to render vacant possession failing which the Landlord is at liberty to evict the Tenant.

4. The Tenant shall bear the costs of this application.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

RULING DELIVERED IN OPEN COURT BY HON CYPRIAN MUGAMBI NGUTHARI  AND THIS 8TH DAY OF APRIL 2021 IN THE PRESENCE OF MR. MWENDA FOR THE LANDLORD AND MISS SHABANA FOR THE TENANT

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL