Erene Wanjiku t/a Victory Bar and Restaurant v Rose Ndung’u [2022] KEBPRT 64 (KLR) | Controlled Tenancy | Esheria

Erene Wanjiku t/a Victory Bar and Restaurant v Rose Ndung’u [2022] KEBPRT 64 (KLR)

Full Case Text

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO. E062 OF 2020 (MOMBASA)

ERENE WANJIKU T/A

VICTORY BAR AND RESTAURANT…………………..….TENANT/APPLICANT

VERSUS

ROSE NDUNG’U……………………………..………..LANDLADY/RESPONDENT

RULING

A. Parties and Representatives

1. The Applicant Erene Wanjiku is the Tenant and rented space for the business in the suit property (hereinafter known as the ‘Tenant’).

2. The firm of Muthoni Ngure & Co. Advocates  represent the Applicant/Tenant in this matter. muthoningureadv@gmail.com.

3. The Respondent Rose W Ndung’u is the Landlord and rented out space to the Tenant for the business in the suit property (hereinafter known as the ‘Landlord’).

4. The firm of Ondiko & Co. Advocates represent the Respondent/Tenant in this matter. ndichuadv@gmail.com.

B. The Dispute Background

5. The Landlord and the Tenant entered into a tenancy agreement where the Tenant was supposed to pay a monthly rent of Kshs. 12,000/-.

6. The Landlord issued the Tenant with a notice to terminate tenancy on the grounds that they wanted to repair it and occupy the premises themselves for the reason that the Tenant had breached the terms of their tenancy agreement.

7. The Tenant/Applicant has since moved this Tribunal by way of reference and a notice of motion application dated 23rd September 2021 under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Tenant was seeking that pending the hearing and determination of the suit the Landlord be restrained from closing the premises, obstructing the Tenant by building structures and partitioning the premises.

8. On 27th September 2021 the Tribunal gave injunctory orders against the Landlord.

C. Jurisdiction

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

D. The Tenant’s Claim

10. The Tenant filed a reference and notice of motion application dated 23rd September 2021 and acquired injunctory orders.

E. The Landlord’s Claim

11. The Landlord has filed a replying affidavit dated 5th November 2021.

12. Parties have filed submissions and the matter was fixed for ruling on 14th February 2022.

F. List of Issues for Determination

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

Whether the Tenant is entitled to the orders sought under their application?

G. Analysis and Findings

Whether the Tenant is entitled to the orders sought under their application?

14. Termination of a controlled tenancy is provided for under section 4 of the Landlord and Tenant (shops, Hotels and Catering Establishments) Act. The Section provides that;

“Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with the provisions of this Act”

15. Section 4 (2) and (4) of Cap 301 provide that;

4(2) 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.

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 shall be specified therein.

16. In the present case, the Landlord issued the Tenant with a notice to terminate tenancy dated 28th June 2021 which required that the Tenant vacate the premises by July 2021. Based on the date of the letter and the date when the Tenant was required to vacate, the Tribunal observes that the notice was for a period of one month which is contrary to the requirements of the above provisions.

17. Based on the above it is the contention of the Tribunal that the said notice was not in the form stipulated under Cap 301 hence it was not valid.

18. In addition to the above, the Landlord claims that they increased the monthly rent payable by the tenant from Kshs. 12,000/-to Kshs. 14,000/-.As per the provisions of Section 4(2)increase in rent qualifies as an alteration of the agreement to the detriment of the Tenant s such proper notice should be given to the Tenant beforehand. I have perused the Court file and I have found no evidence of such notice having been given to the Tenant. In light of this requiring that the Tenant clears their arrears using the new rent rates would be an injustice to them as they were not informed prior.

19. The Tribunal has noted the Landlord’s concern as to the state of the latrine used by the Tenant and will give orders to remedy the situation and ensure proper sanitation and maintenance of the same by the Tenant. The Tribunal however finds no fault in the means through which the Tenant has decided to utilize the same facility.

H. Orders

a) The upshot is that the Tenant’s reference and application dated 23rd September 2021 are hereby allowed on the following terms;

a.The Tenant shall facilitate the cleaning and repair of the latrine within 30 days after which the Tribunal shall send an inspector to confirm compliance. Landlord to coordinate inspection costs to be shared.

b. The Landlord shall prepare a statement of accounts within 7 days for all arrears owed to them at the rate of Kshs.12000/- up to the month of February 2022 and issue the same to the Tenant.

c. The Tenant shall clear the outstanding arrears within 60 days failure to which the Landlord shall be at liberty to distress.

d.The Tenant shall pay a monthly rent of Kshs. 14,000/- with effect from 1st March 2022.

e.Each party shall bear their own costs.

f. Mention for compliance on 3rd May 2022.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 14thday ofFebruary, 2022 in the presence of Wanderafor theLandlordandNgurefor the Tenant.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL