Julius Sichenja t/a Modern Busaa Club v Patrick Tamba [2022] KEBPRT 60 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 59  OF 2021 (KAKAMEGA)

JULIUS SICHENJA T/AMODERN BUSAA CLUB..APPLICANT/APPLICANT

VERSUS

PATRICK TAMBA......................................................RESPONDENT/LANDLORD

RULING

1. The tenant moved this Tribunal through a motion dated 18th May 2021 seeking for restraining orders against the landlord from closing the suit premises until his claim was heard and determined.

2. He also filed a reference of even date complaining that the landlord was harassing, intimidating and threatening him with eviction by locking his business goods inside without an order of this Tribunal Contrary to Cap. 301, Laws of Kenya.  He pleads that he had no rent arrears.

3. The application is supported by the tenant’s affidavit of even date wherein he has annexed various documents.  The relationship of landlord/tenant has been existing since 2015.

4. On 14th April 2021, the tenant received a text message from the landlord in the following terms:-

“Be informed as from tomorrow no business until money is paid”.

The message is annexed as ‘J5-4’.  The following day the business premises was closed halting any operations therein.

5. Despite being persuaded to allow the tenant access to the premises, he refused to comply.  Demand letter marked ‘JS 5’ was issued and the landlord responded by his letter dated 10/5/2021 marked ‘JS 6’.

6. The tenant deposes that the landlord took his stock and tools of his trade and started to operate his business therein.  The tenant therefore prays for vacant possession against the landlord.

7. The application is opposed through a replying affidavit of the landlord sworn on 23rd June 2021.  He admits having entered into a tenancy agreement with the applicant  in 2017 which was oral.  He was to run a Busaa Club business at a monthly rent of Kshs.7000/- payable or before 5th day of the month.

8. During the period of tenancy, rent is said to have been mutually increased to Kshs.8000/- which the tenant paid until April 2021.

9. The tenant is said to have delayed for paying rent for April 2021.  The landlord’s attempt to enforce rent payment was futile as the tenant was unavailable at the premises.

10. The landlord deposes that instead of the tenant addressing the issue of rent arrears with him when he came back from Lodwar where he works, he proceeded to file the instant suit on 18th May 2021 and made a  false report to the police in pretence of executing the court order.

11. According to the landlord, the tenant made a false report to the police that the said business was being ran with his licence without his knowledge and/or consent yet he had withdrawn and abandoned that business.  This led to arrest of his business partners who were brewers operating in the premises together with a number of customers.

12. The Busaa business being a community venture and a source of income for many, the landlord advised his wife to get a licence in her names to help the said brewers proceed with their business.  The licence is attached as annexture PT3 (a).

13. The application was directed to be canvassed by way of written submissions but none of the parties complied.

14. The issues for determination are:-

a. Whether the tenant is entitled to the reliefs claimed.

b. Who is liable to pay costs?

15. Section 4(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, cap. 301, Laws of Kenya stipulates as follows:-

“Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall 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 the following provisions of this Act”.

16. Section 4(2) of the said Act stipulates as follows:-

“A 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”.

17. In the instant case, I have not seen the prescribed Notice”  by the landlord to the tenant seeking to terminate his tenancy  in the demised premises.  In absence of such notice, any purported termination is null and void.

18. The SMS message marked ‘JS 4’ addressed to the tenant by the landlord is not the prescribed notice under the Act and is invalid for all purposes.

19. In the case of Lall – vs- Jeypee Investments Ltd (1972) EA 512 the superior court stated as follows:-

“The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is an especially enacted piece of legislation which creates a privileged class of tenants for the purpose of affording them the protection specified by its provisions against ravages of predatory landlords.  Such protection can only be fully enjoyed if the provisions of Act are observed to the latter otherwise the clearly indicated intention of the legislature would be defeated.  In order to be effective in this fashion, the Act must be construed strictly no matter how harsh the result…..  The landlord and Tenant Act laid down a code which parliament intended to be followed and if a landlord does not give notice of termination as prescribed, the notice will be ineffectual.  This may seem unmeritorious defence, but there is no doubt that the court has no power to dispense with these time limits if the defendant chooses to object at the proper time.  This is an Act which requires complete not merely substantive compliance with its peremptory provisions”.

20. I am satisfied therefore that the tenant has satisfied conditions for the grant of an injunction set out in the locus classicus case of Giella – vs- Cassman Brown & Co. Limited (1973) EA 358.

21. I further wish to adopt what the court of appeal stated in the case of Thomas Smith Aikman, Allan Malloy & Others – vs- Muchoki & Others(1982) eKLR at page 4/6 as follows:-

“The conditions spelled out above for the grant of an interlocutory injunction were rightly understood but wrongly applied as follows: the appellants had shown a clear and overwhelming prima facie case with a probability of success, the court ought never to condone and allow to continue a flouting of the law.  Those who flout the law by infringing the rightful title of others, and brazenly admit it, ought to be restrained by injunction.  If I am adding a new dimension for the grant of an interlocutory injunction, be it so.  Equity will not assist law- breakers”.

22. As the reference raises the same issues as the application, I am entitled under section 12(4) of Cap. 301, Laws of Kenya to make such order thereon as I deem fit without the necessity of conducting a viva voce hearing.

23. In the premises, the following final orders commend to me:-

a. The tenant’s application dated 18th May 2021 is allowed in the following terms:-

b. Landlord and his wife are hereby restrained from interfering with, the running of the tenant’s business known as ‘Duka Moja’ situate on L.R No. 5 Kabras/Shamberere/2560 without following the provisions of Cap. 301, Laws of Kenya.

c. The landlord and his wife are restrained from dealing with the tenant’s subtenants trading in the suit premises forthwith.

d. The tenant is authorized to take out alcoholic drinks licence from the County Government of Kakamega in his own name in respect of the suit premises and the latter is directed to issue such licence notwithstanding failure by the landlord to cooperate in the said process.

e. The tenant is relieved from payment of rent from 15th April 2021 until he is back into business premises.

f. The landlord shall pay Kshs.10,000/- to the tenant in costs and if not the same shall be deducted from outstanding and/or future rent payable in respect of the suit premises. It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 18TH FEBRUARY, 2022

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the absence of the parties.