Gicheru v Wathimu & another [2022] KEBPRT 745 (KLR)

Gicheru v Wathimu & another (Tribunal Case E370 of 2022) [2022] KEBPRT 745 (KLR) (Civ) (19 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 745 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E370 of 2022

Gakuhi Chege, Vice Chair

September 19, 2022

Between

James Gichuki Gicheru

Applicant

and

Esther Wanjiku Wathimu

1st Respondent

El Properties

2nd Respondent

Ruling

1. This reference is predicated upon a notice to vacate dated January 2, 2022 by the landlord to the tenant marked ‘JGG3’ by which the latter required the tenant to vacate the suit premises by March 31, 2022.

2. Pursuant thereto, the tenant moved this tribunal by a reference under section 12(4) of Cap 301, Laws of Kenya complaining that the notice was irregular and that the landlord had threatened to evict him from the suit premises being plot no 1, Karuri shopping Centre. The tenant also filed a motion dated April 22, 2022 seeking for restraining orders against the respondents from interfering with his quiet occupation and lawful enjoyment of the suit premises. He also seeks for a declaration that the notice to terminate or alter terms of tenancy dated January 2, 2022 is illegal, null and void.

3. By a replying affidavit sworn on May 18, 2022, the 2nd respondent through one Margaret Wanjiku Mwangi deposes that she was contracted by the 1st respondent as her managing agent for purposes of collecting rent in respect of the suit premises from October 4, 2021. By that time, the 1st respondent had served the tenant with the notice subject matter of the proceedings herein which is not in the prescribed form and that both respondents only came to understand from the tribunal registry about the defect. They therefore served a proper notice.

4. It is therefore not contested that the notice served upon the tenant marked ‘JGG3’ is defective and a candidate for being declared invalid.

5. As regards the application for injunction, the same is also not contested and given the admission that the notice served upon the tenant is defective, I will issue the injunction sought to ensure that the status quo is maintained until a proper notice is served upon the tenant under the provisions of section 4(2) of Cap 301, Laws of Kenya and validated by this tribunal. This will ensure that the tenant is subjected to due process that the status quo obtaining at the suit premises is maintained by both parties.

6. As regards costs, the same are in the tribunal’s jurisdiction and always follow the event unless for good reasons otherwise ordered. I have no reasons to deny costs to the tenant.

7. In conclusion therefore, the following orders commend to me under section 12(4) of Cap 301, Laws of Kenya:-i.The landlord’s notice to terminate tenancy dated January 2, 2022 is declared invalid and of no legal effect.ii.The respondents are restrained by way of injunction from evicting, harassing, disconnecting water and electricity or in any other manner interfering with the tenant’s quiet occupation and lawful enjoyment of the suit premises known as Kinagua Plot no 1 Karuri Shopping Centre without complying with the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya.iii.The landlord is at liberty to serve a proper notice under section 4(2) of Cap 301, Laws of Kenya.iv.The 1st respondent shall pay Kshs 5000/- to the tenant as costs and in default the same shall be deducted/defrayed against the rent account after thirty (30) days hereof.It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 19TH DAY OF SEPTEMBER 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:-Margaret Lunyori/director of 2nd respondentApplicant/Tenant in person.