Kasong’oi & 2 others v Njoru [2025] KEBPRT 163 (KLR)

Kasong’oi & 2 others v Njoru (Tribunal Case E210, E211 & E212 of 2024 (Consolidated)) [2025] KEBPRT 163 (KLR) (3 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 163 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E210, E211 & E212 of 2024 (Consolidated)

A Muma, Member

March 3, 2025

Between

Peter Moi Kasong’oi

1st Applicant

George Kioko Mutua

2nd Applicant

Dominic Musyoka

3rd Applicant

and

Teresiah Njoki Njoru

Respondent

Ruling

A. Parties and their Representatives 1. The Tenants, Nicholas Peter Moi Kasong'oi, George Kioko Mutua and Dominic Musyoka are the tenants of a portion of space on land parcel situated at Msikiti-noor, Changamwe, within Mombasa County (the "suit premises").

2. The 1st , 2nd , and 3rd Tenants appear in person.

3. The Respondent, Teresia Njoki Njeru is the Landlord of the suit premises (the "Landlord")

4. The firm of Benedict Odhiambo Oloo & Co. Advocates represented the Landlord in this matter initially before withdrawing their representation via a Notice of Withdrawal dated 13th January, 2025.

B. Background Of The Dispute 5. Through Applications dated 17th September, 2024 canvassed through Certificate of Urgency of even date, the Tenants moved this Honourable Tribunal seeking orders inter-alia: a temporary injunction restraining the Landlord from evicting, harassing, attacking or denying free entry and exit into the suit premises, order compelling the Landlord to renovate and repair the Tenants' toilets, a declaration that the notice of intention to terminate the tenancy by the Landlord is illegal and defective, and the OCS Changamwe Police Station to ensure compliance of these orders pending hearing and determination of the reference and/or complaint. The said Applications were consolidated by the Order of this Tribunal on 7th October, 2024.

6. Upon perusal of the Tenants' Applications, the Tribunal, on 23rd September, 2024, issued the following Directions ex-parte, the matter is urgent, a temporary injunction restraining the Landlord from evicting, harassing, attacking or denying free entry and exit into the suit premises, Tenants to serve the Landlord for hearing, Tenants to pay September and October rent by the hearing date and subsequent after as agreed and the OCS Changamwe Police Station to ensure compliance of the orders.

7. On 7th November, 2024, Onduso for the Landlord requested to file written submissions in response to the applications. The Tenants noted the dilapidated conditions of the toilets at the suit premises and the same require urgent repairs. The Tribunal directed that the Landlord respond to the applications in 21 days.

8. The Landlord was ordered to organize urgent repairs on the toilet in the next 14 days. The Tribunal further directed the Rent Inspector to visit the suit premises on 29th November, 2024 to verify that the repairs have been done.

9. The matter again came up for hearing on 15th January, 2025. The court directed that the repairs to include the 3 shops.

10. It is therefore the Tenants Applications dated 17th September, 2024, as consolidated on 7th October, 2024, that is the subject of this Ruling.

C. Tenant's Case 11. Vide their various Supporting Affidavits sworn on 17th September, 2024, and their testimonies before this Tribunal, it is the Tenants case that the Landlord issued the said illegal notices of intention to terminate the tenancy in order to frustrate and force them out of the suit premises without following the due process.

12. The Tenants testified that they need more time to organize themselves in order to move out. They added that they were issued with the said notice of intention to terminate the tenancy when they complained about the condition of the toilets. They added that they have been paying rent diligently for 20 years.

D. Landlord's Case 13. The Landlord did not file any response to the Applications despite several directions from this Tribunal. She appeared in person during the hearing of this matter. She testified that she needs to renovate the whole space. She added that the same is not possible with the Tenants still in the premises.

14. The Landlord further stated that the Tenants have blocked the access to the space for repairs. She further testified that the Tenants need to move out as they are causing her losses. She stated that they either failed pay rent or remitted the payments overdue. She added that it was only the Tenants in the instant matter that caused difficulties on the entire suit premises.

E. Jurisdiction 15. The Jurisdiction of this Honourable Tribunal is not contested and therefore is not in dispute.

F. Issues For Determination 16. Having carefully perused the Pleadings presented before this Tribunal and hearing the testimonies by the parties. It is therefore my considered finding that the issues for determination are as follows:i.Whether the notice of intention to terminate the tenancy dated 28th August, 2024 is lawful and validii.Whether the Landlord should renovate the suit premises

G. AnalysisSUBDIVISION - i. Whether the notice of intention to terminate the tenancy dated 28th August, 2024 is lawful and valid 17. The Tenants produced copies of the impugned notice of intention to terminate the tenancy dated 28th August, 2024.

18. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya Act at section 4(2) 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."

19. Section 4(4) further 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"

20. In the case of Manaver N. Alibhai T/A Diani Boutique vs. South Coast Fitness & Sports Centre Limited, Civil Appeal No. 203 of 1994 it was stated as follows;“The Act lays down clearly and in detail, the procedure for the termination of a controlled 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 from 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 also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice.”(emphasis)

21. In this case the Landlord issued the Tenants with a notice to terminate tenancy on 28th August, 2024 which was to take effect from 31st October, 2024. Based on the above provision, the said notice was to take effect after two months which is as per the provisions of Cap 301. As such the said notice can be deemed to be valid.

22. 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." (emphasis)

23. The said notice was in form of a letter from Benedict Odhiambo Oloo & Company Advocates addressed to the Tenants. It is worthwhile to note that the same did not comply with the mandatory requirements of Section 4(2) of the Act requiring the notice to be in Form A. To this extent, the notice dated 28th August, 2024 is invalid.

24. Having established the extent of invalidity of the said notice, this Tribunal will therefore delve into the substance of the said notice.

25. Section 4(5) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act provides for the contents of a termination notice as follows:A tenancy notice shall not be effective for any of the purposes of this Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration or reassessment concerned and requires the receiving party to notify the requesting party in writing, within one month after the date of receipt of the notice, whether or not he agrees to comply with the notice. (emphasis)

26. Having gone through the said notice of termination, this Tribunal is not persuaded that the contents therein complied with the strict and mandatory requirements of Section 4(5) of the Act. The said notice did not specify the ground of termination of the tenancy which is a fundamental requirement. The Landlord only testified before this Tribunal that the reason for termination is to allow repairs to the suit premises. Accordingly, the notice of intention to terminate the tenancy dated 28th August, 2024 is unlawful and invalid. If the Landlord wishes to terminate the tenancy, she is at liberty to issue the Tenants with a valid notice of termination according to the law.

ii. Whether the Landlord should renovate the suit premises 27. As the Tenants averred that the toilets and the suit premises are in a dilapidated condition. They annexed in their various Supporting Affidavits the photos of the same. The Tribunal directed the Rent Inspector to visit the suit premises on 20th November, 2024 to verify that the status of repairs has been done as ordered by the Tribunal.

28. Vide the Inspection Report dated 14th January, 2025, the Rent Inspector confirmed that there were no repairs, renovations and maintenance done on the toilets and bathrooms of the suit premises He observed that the toilets looked so dirty, dark and with no proper ventilation, that there was no case of mobility and accessibility to the bathrooms, there was no running water, the door was removed and placed aside rendering the toilets unfunctional and abandoned trash and stones hindering access. He attached photographs to show the conditions of the premises.

29. In light of the above, this Tribunal is convinced that the toilets and the suit premises are indeed in a dilapidated condition. The Schedule to the Act provides for implied conditions in tenancies. It stipulates that premises should be fit for habitation and comply with the laws relating to health in all respects and further that the lessor shall be responsible for the repair, maintenance cleaning and lighting of common parts where part of a building is let.

30. The Landlord is therefore obliged to repair and renovate the suit premises which are in a bad condition not up to the health standards for the Tenants. Owing to the bad state of the toilets on the suit premises, this Tribunal acknowledges that the repairs are substantial, urgent and required to mitigate the public health hazard paused by the suit premises current condition.

31. Owing to the said condition of the toilets, this Tribunal finds that the same is hazardous to public health and therefore not suitable for the health of the Tenants. Accordingly, the Tenants cannot continue with the occupation of the premises. The Tenants must therefore vacate to allow for the renovation.

DIVISION - iii. Who should bear the costs of this application? 32. Section 12(1)(k) accords this tribunal the powers to award costs with respect to applications and references made to it. It is trite law that costs follow event. In Republic vs Rosemary Wairimu Munene, Ex-Parte Applicant Vs Ihururu Dairy Farmers Co-operative Society Ltd Judicial Review application no 6 of 2014 the court held as follows: -“The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event....... It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.’’

H. Orders 33. In the upshot, the Tenant’s Reference and Application dated 4th October, 2024 is hereby disallowed in the following terms:a.The Landlord shall take back vacant possession of the suit premises within 30 days of this ruling;b.The Landlord is hereby compelled to repair and renovate the suit premises within 60 days. Thereafter, the Tenants will have first priority to move back into the suit premises upon renovation if the parties agree on new tenancy terms;c.Costs of the matter shall be in the cause.

HON A. MUMA - MEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, DELIVERED AND SIGNED AT NAIROBI ON THIS 3RD DAY OF MARCH 2025In the presence of Peter Moi, George Kioko, Dominic Musyoka, the Tenants in person and Teresiah Njoki the Landlord in person.HON A. MUMA - MEMBERBUSINESS PREMISES RENT TRIBUNAL