Ingrid Waiyego Maina & Antony Macharia v Charles Karing’ori [2021] KEBPRT 162 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E126 OF 2021 (NAIROBI)

INGRID WAIYEGO MAINA..................LANDLADY/1ST APPLICANT

ANTONY MACHARIA......PROPERTY MANAGER/2ND APPLICANT

VERSUS

CHARLES KARING’ORI................................TENANT/RESPONDENT

RULING

1.   The Tenant’s/Applicant’s application dated 15th June 2021 seeks an order that the Tribunal be pleased to extend time for the Tenant/Applicant to oppose the notice of termination or file a reference against the notice.  The application has also prayed for costs.

2.   The grounds upon which the affidavit is brought and the affidavit in support thereof may be summarized as follows;

a.   That the Applicant was never served with the termination notice.

b.   That the Landlady has filed an application seeking to evict the Tenant and the Tenant has been served with the same.

c.   That the “Josphat” who was purportedly served with the notice is not an employee of the Tenant/Applicant.

d.   That the Landlady has not annexed an affidavit of service to confirm who was served with the said notice.

e.   That the Tenant is keen to oppose the termination notice on very serious grounds.

3.   The application is opposed.  The 2nd Respondent has filed a replying affidavit sworn on 1st July 2021 and which I summarize as follows;

a.   That the Applicant is their Tenant at Mulolongo paying a monthly rent of Kshs 26,000/-.

b.That on 1st March 2021, the 2nd Respondent in the company of Mr Kelvin Ngulli Shishanya served one Mr Josphat, the Tenant’s employee with the notice to terminate tenancy dated 25th February 2021.

c.   That the 2nd Respondent called the Tenant who accepted to pay rent for March and also confirmed that he had seen the notice of termination, the Tenant would follow up the notice with his advocates.

d.   That the Tenant’s application is only meant to buy time and delay justice.

e.   That the Tenants’ employee, one Mr Josephat ought to be produced in court for cross-examination.

4.   The Tenant/Applicant has also filed a further affidavit sworn on 2nd August 2021 and it is to the effect;

a.   That the Tenant does not have an employee by the name Josphat.

b.   That the Tenant was not called by anybody at all in regard to a termination notice.

c.   That the Landlord shall not suffer any prejudice if the Tenant is allowed to file a reference and have the same heard on merit.

5.   The only issue that arises for determination is whether the Tenant is entitled to the prayers sought in his application dated 15th June 2021.

6.   The application has been brought under section 6(1) of Cap 301 which is in the following terms;

“A receiving party who wishes to oppose a tenancy notice and who has notified the requesting party under section 4(5) of this Act that he does not agree to comply with the tenancy notice may before the date upon which such notice is to take effect refer the matter to a Tribunal whereupon such notice shall be of no effect until and subject to, the determination of the reference by the Tribunal.

Provided that a Tribunal may for sufficient reason and on such conditions as it may think fit, permit such a reference notwithstanding that the receiving party has not complied with any of the requirements of this section.”

7.   The Tenant’s/Applicant’s failure to comply with the requirements of section 6(1) above has been attributed to failure by the Respondent to serve the Tenant with the termination notice.  The Tribunal need only be concerned with establishing whether there exists a sufficient reason to allow the Tenant to file the reference notwithstanding that he has not complied with the provisions of section 6(1) of Cap 301.

8.   The Landlady’s position is that the Tenant was served with the termination notice by one Mr Kelvin Nguli Shishanya, through his (The Tenant’s) employee, one Josphat.  The Tenant has denied that any service took place as stated by the Respondents.  Indeed the Tenant has denied that he has an employee by the name Josphat.  Faced with this challenge, one would have expected the process server, the said Mr Kelvin Nguli Shishanya to have filed an affidavit of service showing who was served with the termination notice.  In the absence of such an affidavit, it is not enough for the Respondent’s to merely state that they called the Tenant who admitted to have seen the notice.  This is even more so when the Tenant/Applicant has denied being called by anybody as concerns the termination notice.

9.   Consequently, I do find that there is no evidence that the Tenant/Applicant was served with the termination notice.

10. The Tenants/Applicants fear that the Landlady may evict him is not without basis.  The Respondents have sought to enforce the notice by their application dated 17th May 2021 and their reference of the same date.  The Tenant’s right to oppose the notice to terminate his tenancy is guaranteed by Cap 301 and the court has discretion to allow the reference to be filed out of time under section 6(1), the proviso thereof.

11. Having found that the Applicant/Tenant was not served with the notice to terminate his tenancy and that he has a right to oppose the said notice, I do find that the Tenant’s/Applicant’s application dated 15th June 2021 has merit and I allow the same.

12. The Tenant is ordered to file his reference within the next seven days failing which the Respondents shall be at liberty to enforce the notice to terminate the tenancy.  The Tenant shall have the costs of the application.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this19thday of October 2021 in the presence of Ms Ingridfor the Applicantand in the absence of the counselfor theTenant/Applicant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL