Karanja v Gitonga [2025] KEBPRT 278 (KLR)

Karanja v Gitonga (Tribunal Case E1259 of 2024) [2025] KEBPRT 278 (KLR) (28 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 278 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1259 of 2024

N Wahome, Chair & Joyce Murigi, Member

April 28, 2025

Between

Beth Wangui Karanja

Applicant

and

Agnes Nkirote Gitonga

Respondent

Ruling

1. This Ruling is on the Tenant/Applicant’s notice of motion application dated 14/1/2024. The same is said to be grounded on Section S 2, 3, 4 (1), (2) and 4 and Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301) which we hereinafter refer to as ‘’the Act’’.

2. Though the Application sought for a total of 6 prayers, they all crystalizeds into two prayers. The Tenant wanted the landlady compelled to allow her complete quiet possession of the demised premises and reconnection of electricity power which had allegedly been disconnected. She prayed that the costs be provided for.

3. The Tenant’s Application was accompanied by a reference of the even date and which simply sought for the following relief:-“I therefore request the tribunal to investigate the matter and determine the issues involved”.

4. The Tenant also filed the supplementary affidavit sworn on the 18th January 2025 and concluded her evidence with filing of the submissions dated the 18th January 2025. The gist of the Tenant’s evidence is that:-i.She had on the 14th May 2024 entered into a tenancy agreement with the landlady on the premises known as shop no. 2 within Boon apartment which are to be found in Roysambu area of Nairobi.ii.The Landlady had issued her with illegal notices to vacate and in particular the one dated 11/10/2024 and an undated one issued in the month of November 2024. iii.The landlady had without any justification disconnected power from her premises which had adversely affected her business.iv.The landlady was working with the Tenant’s competitor within the premises to undermine her business.v.She had mitigated the noise that the landlady had complained about by withdrawing the sound system placed outside the shop.vi.Every effort to amicably resolve the issues had failed, andvii.She had responded to the landlady’s illegal notices of termination of tenancy and disagreed with the same as she was not in any breach of their tenancy agreement.

5. On her part, the landlady in response to the Tenant’s claim, she filed the Replying Affidavit sworn on the 22/11/2024 and the submissions dated 28/2/2025. Her evidence is that:-i.She was not responsible on issues of electricity power but only water pursuant to the Tenancy agreement dated 14th May 2024. ii.There had been several complaints reported to her by other tenants about a lot of noise emanating from the Tenant’s premises.iii.She approached the Tenant about the issue but that the same was never addressed.iv.The Tenant despite several warnings had continued to be in breach of the tenancy agreement by allowing sit – in customers when her business was rented out as a take away joint.v.She obeyed the chiefs summons contrary to the Tenant’s assertion and presented her case to him.vi.The eviction notices issued to the Tenant were legal as she was in breach of Clause 5(iv) of the Tenancy agreement.

6. We have perused the parties pleadings and their respective submissions and we are of the view that this matter rises or falls on the determination of the question of the legality of the notices of termination issued to the Tenant by the landlady.The other issue for our determination is on who to bear the costs of these proceedings.

7. The notices that were issued to the Tenant requiring her to vacate the demised were by the letters dated 11/10/2024 and an undated letter likely issued in the month of November 2024.

8. The Act is very categorical on the attributes required to render a notice of termination legal and effective. Section 4(2) of the Act provides that:-“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”.

9. The prescribed form alluded to under Section 4 (2) hereinabove is provided for under Regulation 4(1) of the Regulations to the Act. The same provides that:-“A notice under Section 4(2) of the Act by a Landlord shall be in Form A in the schedule to these Regulations”.

10. Further, Section 4(4) of the Act provides that:-“No Tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party, as shall be specified therein”.

11. The other critical threshold required by the law for a notice to terminate tenancy to be lawful is provided for under Section 7 (1) of the Act. The same provides that:-“Where under Section 4 of this Act served a notice of termination of a controlled tenancy on the tenant, the grounds on which the landlord seeks to terminate such tenancy may be such of the following grounds as are stated in the aforesaid notice…..”

12. A perusal of the termination notices issued to the Tenant by the Landlord speaks to the fact that the same are not compliant with the law and in particular Sections 4(2) (4) and 7 (1) of the Act and Regulation 4 (1) of the Regulations to the Act.

13. The purported notices are not in the prescribed form, did not comply with the strict timelines set by the law and did not provide grounds for termination that are known to the law. We would therefore without any difficulty determine that the said notices are unlawful and of no legal effect nor consequence.

14. In this, we find reliance in the case of Fredrick Mulinge Mutua T/A Kitui Uniform -vs- Kitui Teachers Housing co-operative society Ltd (2017) eKLR where the court held that:-“It is clear from the foregoing authorities that the tenancy notice dated 28th June 2014 was null and void for failing to give the appellant two months notice as required under the Act and as such was of no legal effect. Life could not be breathed into the defective notice by the letter dated 1/7/2014 through which the Respondent purported to amend the effective date of the notice. The letter was not a notice in the prescribed form provided for under the Act”.

15. This position was succinctly restated and/or reiterated in the leading case of Manaver N. Alibhai T/A Diani Boutique – vs- South Coast Fitness and Sports Centre Limited Civil Appeal No. 203 of 1994 where the court stated thus:-“The Act lays down clearly and in detail the procedure for the termination of a 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 of the date of receipt thereof by the Tenant. The notice must also specify the ground upon which termination is sought. The prescribed notice in Form A requires the landlord to ask the Tenant to notify him in writing whether or not the tenant agrees to comply with the notice”.

16. In view of the above, it hen follows that the Tenant was entitled to approach this court for its intervention. Her application dated 14/11/2024 therefore succeeds and the landlord will immediately restore electricity power into the demised premises and also allow the Tenant complete quiet possession of the demised premises.

17. We also observe that with the determination of the application herein, nothing is left for adjudication on the reference as filed. We therefore resolve the same in the same terms as the Application herein.

18. Costs follow event and we would therefore and in line with the dictates of Section 12 (1) (k) of the Act award costs to the Tenant who is the successful party.

19. In the final analysis, the orders that commend to us are the following:-i.That the reference and application both dated 14/11/2024 are allowed in terms that the Tenant shall be allowed complete quiet possession of the demised premises as manifested in shop No. 2 situate within Boon Apartments at Roysambu in Nairobi City.ii.That the Landlady shall immediately restore electricity power within the demised premises and not in anyway interfere with the same.iii.That the Tenants is awarded costs assessed at Kshs.25,000/- to be offset against rent payable.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF APRIL, 2025. HON. NDEGWA WAHOME MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL. BPRT.Ruling delivered in presence of Counsel for the Tenant /Applicant and Counsel for the Landlord/Respondent,HON. NDEGWA WAHOME MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL. BPRT.3