Gichia v Gitau [2022] KEBPRT 768 (KLR)

Gichia v Gitau (Tribunal Case E157 of 2022) [2022] KEBPRT 768 (KLR) (14 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 768 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E157 of 2022

Cyprian Mugambi Nguthari, Chair

September 14, 2022

Between

Evans Gichia

Tenant

and

Mary Gitau

Landlord

Ruling

Introduction 1. The Tenant’s complaint dated 15th February 2022 and brought under section 12(4) of Cap 301 raises the complaint that the Landlady has issued an illegal notice to the Tenant to vacate the premises and that further the said notice is not in the right form and does not state any reasons for the termination.

2. The Applicant/Tenant has also filed a notice of motion wherein he seeks that the Tribunal be pleased to dismiss the Landlord’s termination notice dated 10th January 2022. The application has also sought orders to restrain the Landlord from interfering with the Applicant’s tenancy in the suit premises.

Parties Depositions 3. The application is supported by the affidavits of Evans Gichia, the Applicant herein and opposed by the replying affidavit of Mary Gitau the Landlady. I have read both affidavits and I have considered them in this ruling.

Analysis and Determination 4. The only issue that arises in this application is whether the termination notice dated 10th January 2022 ought to be dismissed as prayed by the Tenant/Applicant.

5. The Landlady at paragraph 9 of the replying affidavit has stated that the notice dated 10th January 2022 is neither signed nor does it bear her name and is therefore of no probative value. She however proceeds to state that the Tenant has not suffered any prejudice as he has been given sufficient time to vacate. The Landlady has further sought under paragraph 11 of her affidavit that the Tribunal grants her an opportunity to issue a fresh notice under section 4(2) of Cap 301 in the event that the Tribunal finds the impugned notice defective.

6. At prayer 12 of her replying affidavit, the Landlady states;“I verily believe that no prejudice has been suffered by the issuance of the notice as I have not taken any active steps to evict the Tenant from the premises.

7. On the basis of the foregoing, I do find that the Landlady actually issued and was aware of the notice dated 10th January 2022. By a letter dated 5th February 2022 and which letter is acknowledged by the Landlady at paragraph 13 of her affidavit, the Tenant responded to the notice dated 10th January 2022 and indicated that he intended to continue using the premises. The letter did not elicit any response from the Landlady and the letter further buttresses the finding that indeed the Landlady was aware of the notice to vacate.

8. Was the notice to vacate/terminate tenancy dated 10th January 2022 legal and valid? Section 4(2) of Cap 301 is in the following terms:“A Landlady who wishes to terminate a controlled tenancy or to alter to the detriment by 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 Landlord in the prescribed form.”

9. Section 4(5) of Cap 301 also states;“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.”

10. The notice dated 10th January 2022 issued by the Landlady is not in the form A prescribed in the schedule to the Act and neither does it comply with the requirements of section 4(5) of Cap 301 cited above. It is my finding therefore that the notice is defective and of no legal effect.

Disposition 11. Following from the above, the Tenant’s reference/complaint is merited and I allow the application by the Tenant dated 15th February 2022. The Landlord shall bear the costs of the reference/complaint and the application. This file is closed.

HON. CYPRIAN MUGAMBI NGUTHARICHAIRMANBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 14TH DAY OF SEPTEMBER, 2022 IN THE PRESENCE OF EVANS GICHUA (TENANT) AND IN THE ABSENCE OF THE LANDLORD.HON. CYPRIAN MUGAMBI NGUTHARICHAIRMANBUSINESS PREMISES RENT TRIBUNAL