Gitahi v Njenga & 2 others [2024] KEBPRT 4 (KLR)

Gitahi v Njenga & 2 others (Tribunal Case E825 of 2023) [2024] KEBPRT 4 (KLR) (16 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 4 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E825 of 2023

Andrew Muma, Ag. Chair

January 16, 2024

Between

Hannah Nduta Gitahi

Applicant

and

Godfrey Muhuri Njenga

1st Respondent

Jane Gichira Muhuri

2nd Respondent

Samuel Njenga Muhuri

3rd Respondent

Ruling

A. Parties And Representatives 1. The Applicant Hannah Nduta Gitahi is the tenant and had rented space for business in the suit property located at Kikuyu -Rumwe Plot No.36 T/A Hannah Pub paying a monthly rent of Ksh. 18,000. (Hereinafter “the Tenant”).

2. The Tenant in this matter appears in person.

3. The Respondents herein are the Landlords and the owners of the suit property and had rented out the space for business purposes on the suit premises to the tenant (hereinafter the “Landlord”).

4. The firm of Gitau S.M & Company Advocates represents the Landlady in this matter.

B. Background Of The Dispute 5. The Applicant/Tenant avers that she has been running her business in the Respondent’s Plot located at Kikuyu-Rumwe Plot No. 36 T/A Hannah Pub from 2018 paying a monthly rent of Ksh. 18,000.

6. The Tenant alleges that the Landlord herein communicated his intention to evict her from the suit premises by issuing her with a verbal notice to vacate and intends to deny her access to her business by locking the premises.

7. It is the Landlord’s case that the Tenant’s premises were closed by the Kiambu County Government and that it is therefore incorrect for the Tenant to allege that the Landlord had verbally threatened to evict the Applicant.

8. The Tenant avers that the business premises were closed as a result of the Landlord’s failure to provide adequate sanitary facilities.

9. Consequently, the Tenant filed a Reference and an Application dated 23rd August 2023 seeking the intervention of this Honorable Tribunal.

C. The Tenant’s Claim 9. The Tenant avers that he had rented out the Respondent’s space and was one of the Tenants of Plot No. 36 Rumwe. The Tenant avers that she was the first to operate the liquor business which ran smoothly until 2022 when the Landlord added two bars leading to inadequate sanitary facilities as the Landlord did not provide the recommended washrooms.

9. The Tenant avers that the premises were temporarily closed due to lack of adequate sanitary facilities and poor hygiene. It is the Tenant’s case that the building has 6 lavatories and among the six, she bought two cartons of tiles and paid for labour to put in one toilet. She states that the documents ordering closure of the business from Kiambu County Government are null and void as they do not have a stamp or seal.

9. The Tenant also contests the reasons issued seeking to terminate tenancy stating that she has been paying for business license to the Kiambu County Government, that there has not been any official complaint of harassing co tenants and that she has not at any point sold illicit drinks in her premises.

9. Further, the Tenant disputes the reason issued by the Landlord on need to construct toilets stating that the toilets that the Landlord was instructed to construct by the public health officer are 10-15 metres away from her premises and therefore the reason to have the tenant evacuate the premises does not suffice.

9. The Tenant avers that she has carried out several renovations in the premises including;i.An extension of the premises and installation of electricity at her own costsii.Installed water in the premises from the main source of water which is 10 meters away from the premisesiii.The Tenant further avers that in 2022, despite cementing the floor and installing roofing, the Landlord increased the rent to Kshs. 18,000 which is the current rent she pays.

14. The Tenant submits to this Tribunal to consider the huge costs/expenses incurred in renovating the premises as she did so with the legitimate expectation that she would occupy the premises for a longer period.

D. The Landlord’s Claim 14. It is the Landlord’s case that the indeed on the 11th day of August 2023, he issued the Applicant with a Notice to vacate the premises. The Landlord avers that the Tenant received and signed the same. The allegation that the Landlord issued a verbal notice to terminate tenancy is therefore incorrect.

15. The Landlord further states that upon issuance of the Notice to terminate tenancy, the Tenant/Applicant did not at any point indicate her intention to comply or dispute the said termination notice.

14. The Landlord avers that at the time of filing the application the applicant was in possession of the termination notice and therefore the said application is intended to frustrate the implementation of the said Termination Notice.

F. List of Issues For Determination 18. The issues raised for determination are as follows;a.Whether the Notice to Terminate tenancy issued by the Landlord and the reasons advanced are legal and should be upheld?

F. Analysis & Determination 19. The Reference filed by the Tenant/Applicant raises fundamental issues discussed herein below:a.Whether the Notice to Terminate tenancy, issued by the Landlord and the reasons advanced are legal and should be upheld?

20. Section 4(2), of the Land and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya states that: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. No tenancy shall take effect until such date, not being less than two months after the receipt thereof by the receiving party.

21. Section 4(4) of the Act provides that a notice shall take effect not being less than two months after the receipt thereof by the receiving party.

22. In Munaver N Alibhai T/A Diani Boutique v South Coast Fitness & Sports Centre Limited [1995] eKLR, the Court of Appeal held that the notice of termination of the tenancy was void for failing to comply with Section 4 of the Act stating as follows;“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not 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 specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The notice must also specify the grounds on which termination is sought. The prescribed notice in Form A also requires the landlady to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice.”

23. From the foregoing, it is clear that a notice to terminate or alter the term of a controlled tenancy must be issued not less than two months to the tenant and the same must indicate valid reasons for such termination.

24. The evidence tendered before this Honourable tribunal by the Tenant indicates that the Landlord issued the termination of tenancy agreement on 8th August 2023 and the same was to take effect on 1st day of November 2023. This is four months after the said notice had been issued hence in compliance with Section 4 (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. To that extent, the said notice is held to be valid.

25. However, for a notice to be valid, the reason advanced must be valid reasons. Having established that the notice issued by the Landlord to the Tenant was valid, the main question for determination before this Tribunal is with regards to the substance of the said notice. The Tenant in her annexure marked “GMN ANG5” averred that she disputes the reasons issued in the notice seeking to terminate tenancy.

26. Section 7 of the Land and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya provides for the grounds on which a landlord may seek to terminate tenancy. The reasons advanced to the tenant are that; the Tenant was operating an unauthorised business, she was harassing co-tenants, and need to construct a toilet and selling illicit alcoholic drinks.

27. I note that the Landlord did not provide any evidence to support the aforementioned reasons. On the reason issued on the need to construct a toilet, indeed Section 7 (1) (f) provides that a Landlord may issue a termination notice where they intend 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.

28. The Landlord has not demonstrated or provided any evidence to show that the reason to construct the toilet is genuine. In Fisher v Taylors Furnishing Stores Ltd [1956] 2 All ER 78, the Court held that;“There must, therefore, be an intention and it must be an intention which in point of time is related to the termination of the current tenancy. It seems to me that the intention must be to do one of the following things: (i) to demolish the premises comprised in the holding; or (ii) to reconstruct the premises comprised in the holding; or (iii) to demolish a substantial part of the premises comprised in the holding; or (iv) to reconstruct a substantial part of the premises comprised in the holding; or (v) to carry out substantial work of construction on the holding; or (vi) to carry out substantial work of construction on a part of the holding.If the landlord prove an intention to do one of those things, and to do it on the termination of the current tenancy, he must then prove that he could not reasonably do it without obtaining possession of the holding.”

29. I have carefully reviewed the reasons advanced seeking to terminate the tenancy and find none to hold water and the Notice issued must fail.

F. Orders 30. The upshot is that the Tenant’s Reference and Application dated 23rd August 2023 is hereby allowed in the following terms:a.The Notice of termination by the Landlord/respondent dated 8th August 2023 is invalid and the same is of no legal effect.b.Tenant to continue paying rent on due dates as agreed.c.OCS Kikuyu Police Station to ensure compliance.d.Each party to bear its own costs.

RULING DATED, SIGNED AND DELIVERED AT NAIROBI 16TH DAY OF JANUARY 2024 IN THE ABSENCE OF PARTIES.HON A. MUMAAG CHAIR/MEMBERHON JACKSON ROPMEMBERBUSINESS PREMISES RENT TRIBUNAL