Kanyalu v Nyawira & another [2022] KEBPRT 683 (KLR)

Kanyalu v Nyawira & another (Tribunal Case E832 of 2021) [2022] KEBPRT 683 (KLR) (Civ) (8 August 2022) (Ruling)

Neutral citation: [2022] KEBPRT 683 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E832 of 2021

Gakuhi Chege, Vice Chair

August 8, 2022

Between

Joseph Njogu Kanyalu

Applicant

and

Susan Ellah Nyawira

1st Respondent

Cartier & Carter Realtors

2nd Respondent

Ruling

1. The tenant moved this tribunal through a complaint dated December 28, 2021 wherein he complained that the landlord through her agent issued an illegal notice threatening to evict him on or before January 3, 2022 contrary toCap 301, Laws of Kenya.

2. He simultaneously filed a motion dated December 28, 2021 seeking restraining orders against the Respondents from any interference with his quiet possession and quiet occupation of the suit premises known as AS 12. Greatwall shop, Athi River pending hearing of the case.

3. The application is supported by an affidavit of even date sworn by the tenant wherein it is deposed that the suit premises attracts a monthly rent of Kshs 36,000/-. The landlord issued a notice to the tenant in which she expressed intention to evict him with effect from January 3, 2022 although there was no lawful justification to do so.

4. According to the tenant, the threatened eviction and notice is illegal and needed the tribunal’s intervention.

5. The application is opposed through the replying affidavit of Suheib Carter Muinde sworn on January 14, 2022 in which it is deposed that the tenant failed to serve the pleadings in this matter and only notified the 2nd respondent about the case when he went to effect the notice of eviction served on December 8, 2021 marked ‘SCM2’.

6. In the said letter, the 2nd respondent demanded outstanding rent ofKshs 78,830/- and gave him one (1) month notice to vacate the suit premises by January 3, 2022. It is the respondents’ case that the 21 days notice is provided for in the lease agreement marked ‘SCM-3’.

7. On December 18, 2021, a reminder notice was written to the tenant in respect of rent arrears for the months of October, November and December 2021. It is the respondent’s case that the tenant was in breach of the lease agreement. The letter is marked ‘SCM-4’.

8. As such, the respondents object to the application and seek dismissal of the tenant’s case and application.

9. The application was directed to be disposed of by way of written submissions and both parties complied. I shall consider the submissions while dealing with the issues for determination.

10. Going by the pleadings, the following issues arise for determination:-a.Whether the notice to terminate tenancy dated December 8, 2021 is valid or not.b.Whether the tenant is entitled to the reliefs sought in the complaint and application herein.c.Who is liable to pay costs?

11. It is not in dispute that the tenant and the 1st respondent entered into a tenancy agreement marked ‘SCM-3’ for a period of five (5) years with effect from August 1, 2020. As submitted by the tenant’s counsel, the tenancy created vide that agreement is a controlled tenancy within the meaning and interpretation of section 2(1) (b) of Cap 301. It is further submitted that the notice issued to the tenant is not in the prescribed form as it did not emanate from this Tribunal and contravenes section 4(1) of Cap 301.

12. On the other hand, the landlord’s counsel submits that the tenant was served with a letter on outstanding debt on December 8, 2021 which also contained a 21 days notice to vacate which is the notice prescribed in the lease agreement entered into between the parties under clause 9.

13. Section 4(2) of Cap 301, Laws of Kenya, provides 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”.

14. I have looked at the notice served upon the tenant and I have no doubt that it does not conform with the one stipulated under the Act. section 4 (4) of the said Act stipulates that where notice is given of the termination of a controlled tenancy, the date of termination should not be less that two months. As such a 21 days notice on a non-prescribed form is fatal.

15. I agree with counsel for the tenant that a notice which does not conform with section 4 of Cap 301 is invalid and a candidate for dismissal on the authority of Lall v Jeypee Investment Ltd (1972) EA 512.

16. The tenant submits that his application for injunction meets the threshold set in the case of Giella v Cassman Brown & Co Ltd (1973) EA 358 & Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (2003) eKLR on the ground that the landlord issued an illegal notice threatening to evict him without following due process and thus sought for this court’s protection. Some of the issues raised in the submissions are not borne out of the affidavits filed and since they were not pleaded cannot be canvassed in the manner presented.

17. On the other hand, the respondents’ counsel submits that the tenant failed to pay rent as stipulated in the lease agreement. As such, the tenant is accused of coming to court with unclean hands. He had arrears of Kshs 140,830/- as at December 2021 as per invoices attached to the replying affidavit. He dishonored the notice dated December 8, 2021.

18. It is submitted that the tenant was in breach of the lease agreement and ought not benefit from his wrong doing on the authority of Mary Wanjiku & Challa Holdings Ltd v Kenya Commercial Bank Limited being Mombasa HCCC No 250 of 2000 where it was held as follows:-“Equity will not allow the plaintiff to gain from his wrongful act nor will a court aid a man to derive advantage from his wrong for such would be unconscionable”.

19. On the authority ofCaliph Properties Limited v Barbel Sharma, & Another (2015) eKLR the respondents submit that the tenant has approached this tribunal with unclean hands and the injunction sought being an equitable remedy must fail. It is further submitted that the tenant has not brought himself within the principles set out in Giella v Cassman Brown & Co Ltd (Supra).

20. The landlord submits that clause 5 of the lease agreement allows the right to re-enter the premises and terminate the lease and her notice to terminate does not amount to interference with quiet enjoyment of the premises as alleged by the tenant.

21. The basis of the tenant’s complaint and application is that the notice served upon him is illegal or invalid in view of the fact that his tenancy was protected under Cap 301, Laws of Kenya. As such, having found that indeed, the said notice does not conform with provisions of section 4 of Cap 301 Laws of Kenya, I am ready to hold that the tenant has established a prima facie case with a probability of success.

22. In regard to the principle of irreparable harm and damage, the tenant approached this tribunal fearing the possibility of an illegal eviction. Indeed, the 2nd respondent admits at paragraph 3 that he was ready to effect the eviction in the replying affidavit as follows:-“3. That the tenant/applicant notified me about the order issued only when I went to the premise to effect the notice of eviction that had been served on December 8, 2021”.

23. This tribunal according to the short title ofCap 301 was established with the intention of effecting the objective of the Act which is to make provision with respect to certain premises for the protection of the tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto.

24. As such, this tribunal is duty bound to protect eviction of the tenant herein from illegal eviction whether or not he is in rent arrears or alleged breach of tenancy/lease agreement as the landlord has a legal obligation to follow the law on termination of the tenancy and recovery of rent arrears under Cap 301, Laws of Kenya. I find and hold that it is sufficient injury if a person is subjected to an illegal eviction process that warrants intervention of this tribunal. I am fortified in this regard by the court of appeal decision in Aikman v Muchoki & Others (1982) eKLR at page 4/6.

25. In any event, the balance of convenience is in favour of the tenant who risks eviction in the event that this Tribunal denies him the injunction order sought.

26. I however note that the landlord has a right to rental income and to terminate the tenancy in accordance with Cap 301, Laws of Kenya and by granting the injunction sought by the tenant, the tenant is not absolved from payment of rent neither is it a shield against termination of his tenancy.

27. Section 12(4) of Cap 301, Laws of Kenya gives this Tribunal the following powers:-“4. In addition to any other powers specifically conferred on it by or under the Act, a tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant and may make such order thereon as it deems fit”.

28. The foregoing section empowers this tribunal to determine the issues raised by the tenant as well as those raised by the landlord. I therefore find that the landlord is entitled to recover any rent in arrears in respect of the suit premises by the tenant and in default to use lawful means to recover the same. The landlord is also entitled to issue a proper notice under section 4(2) of Cap 301, Laws of Kenya if she desires to do so.

29. As regards to costs, the same are in the honourable tribunal’s discretion and always follow the event unless for good reasons otherwise ordered. I have noted that although the landlord’s notice is illegal or invalid, the tenant owed rent to her and is not entitled to costs in this case.

30. In conclusion, the following final orders commend to me:-(i) The landlord’s notice to terminate tenancy dated December 8, 2021 served upon the tenant herein is invalid and of no legal effect.(ii) The landlord and her agents, servants, or any other person claiming under her is restrained from evicting, closing, obstructing, harassing or in any other way interfering with the tenant’s quiet occupation and use of the suit premises known as Great Wall G AS12. Athi River and the OCS, Athi River Police Station shall enforce compliance (if need be).(iii) The tenant is ordered to pay in full all rent in arrears within the next Thirty (30) days hereof failing which the injunction order granted herein shall automatically stand vacated.(iv) The landlord is granted leave to issue a proper termination notice under section 4(2) of Cap 301 (if need be) upon the tenant on the same ground of non-payment of rent set out in the impugned notice.(v) Each party shall bear own costs of the proceedings herein.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF AUGUST 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL.In the presence of:Waweru holding brief for Musundi for RespondentKamau for the Tenant