Joyce Mumo Kania v Larry Nakudana [2021] KEBPRT 421 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO. 995 OF 2020

JOYCE MUMO KANIA........TENANT

VERSUS

LARRY NAKUDANA....LANDLORD

JUDGEMENT

The Tenants herein filed a references dated the 15th day of December 2020. The complaint in the said references is that the Landlord had issued her with a notice to vacate dated 12th November 2020, that he intended to use the shop for his personal use.

The tenant under oath confirmed receiving the notice to terminate tenancy on the 16th November 2020.

It was also contended by the tenant that the Landlord’s notice was issued in bad faith and did not comply with procedure and form. The tenant herein made a plea to the tribunal to be allowed to continue using the Premises and that the notice dated 12th November 2020be declared invalid.

The landlord’s notice as issued on the 12th November 2020 indicates the grounds for seeking termination of the tenancy as,” The landlord intends to utilise the shop for personal use”

The Landlord filed an affidavit on the 3rd March 2021.

This matter proceeded to full hearing of the reference on the 16th March 2021 with both testifying and adopting their various affidavits and documents.  All parties closed their respective cases on the same day.

It was the landlord’s case that the tenant herein was a habitual defaulter and actually not his primary tenant but that that was not his major reason in seeking to terminate the tenancy. He under oath stated that he is a business man who runs a bar business and has a few rentals and due to covid 19 aftereffects, he intended to put up another business on the premises occupied by the tenant herein to supplement his income as he had bank facilities to settle.

The tenant testified on oath and avouched to have received the said notice on 16th November 2020. Testified that she runs a cosmetic shop known as CLENZER COSMETICS, confirms that she was given 3 months to vacate. She also confirms that she has had difficulties paying rent fully and on time but that the landlord had allowed her to pay as she got and not evicted her for non paymen.t

ANALYSIS AND DETERMINATION.

Upon perusal and analysis of the filed documents and having heard the evidence of both parties and the exhibits therein, the issue for determination in this matter is whether the notice to terminate issued on the 12th November 2020 is valid.

Section 4 of the Landlord & Tenant (Shops, Hotels & Catering Establishments) Act explicitly provides that there can be no termination and alteration of the terms and conditions of a controlled tenancy other than provided therein. It is evident from the documents filed by the Landlord that he indeed complied with the provisions of Section 4 (2) of the Act they issued a proper notice of termination to the Tenant on 12th November 2020.

On whether the notice to terminate tenancy was issued in bad faith or not, the landlord has demonstrated why it was and is necessary to have vacant possession of the property. The landlord stated that he needed to supplement his income and wanted to set up another business to battle with economic after effects of Covid 19.

In my opinion that is a genuine and sufficient reason.

The tenancy ended when the termination came to effect on as it is provided for under Section 4(4) and Section 10 of the Act and the notice. This crystallized the Landlord’s right to take over possession of the premises.

The landlord has satisfied the requirements of section 7(1) (g) and (2) of Cap 301

FINAL ORDERS.

As must be clear from the foregoing legal provisions and the reasons given hereinbefore, it is hereby ordered that;-

1. The References is hereby dismissed and the Tenant to vacate the premises within 30 days and surrender possession to the Landlord.

Judgement Dated, Signed And Delivered Virtually By Hon P. May This 25th Day Of June 2021 In The Presence Of Mwongo For The Landlord/Respondent And In The Absence Of The Tenant/Applicant.

HON PATRICIA MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL