Katuga & Company Advocates v Nairobi Homes Limited [2024] KEBPRT 406 (KLR)

Katuga & Company Advocates v Nairobi Homes Limited (Tribunal Case E187 of 2023) [2024] KEBPRT 406 (KLR) (30 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 406 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E187 of 2023

M Makori, Member

January 30, 2024

Between

Katuga & Company Advocates

Tenant

and

Nairobi Homes Limited

Landlord

Ruling

1. The present claim was filed vide an application dated 07th August 2023 supported by the supporting affidavit of Leo M Katuga.

2. In response, the landlord filed a Replying affidavit dated 14th November 2023 denying the claims made and making claims that the notice to terminate the tenancy was issued legally and a notice issued thereafter.

3. The Respondent/Landlord then filed written submissions dated 11th December 2023.

4. From the totality of the pleadings and submissions filed by parties several issues arise for determination. In arriving on a determination on the matter it is proper to establish whether there is an existing notice that was served and if so whether it is contemplated in law.

5. In addressing this issue, I shall consider two aspects: the formal requirements of a notice for termination of a tenancy agreement and the Landlord’s grounds for termination of the tenancy.

6. For formal requirements of notice of termination of a tenancy I am guided by section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Actcap 301 Laws of Kenya (hereinafter referred to as 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.”

7. Additionally, section 4(4) 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, unless the terms and conditions of the tenancy provide for a period exceeding two months or the parties to the tenancy agree in writing to a lesser period of notice.

8. The two requirements therefore for a valid notice of termination of the tenancy is first, that the notice shall be in the prescribed form and secondly, that the notice shall not take effect until after expiry of two months, or such notice period as may be agreed by the parties. This was emphasized in the case of; Munaver N Alibhai T/A Diani Boutique v South Coast Fitness & Sports Centre Limited [1995] eKLR, where the Court of Appeal at Mombasa in finding that the notice of termination of the tenancy was void for failing to comply with Section 4 of the Actstated 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 grounds on 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.”

9. Additionally, according to section 4(2) mentioned above, the Notice of Termination of tenancy should be the prescribed form, specifically Form A, as provided for in the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Tribunal) (Forms and Procedure) Regulations, 1966.

10. In this case the applicant filed the application making claim that the notice was irregular however he has only attached the tenants notice to obtain reassessment of rent alteration of terms or conditions of tenancy without attaching the notice of termination that he claims was issued.

11. On the other hand, under paragraph 10 of the replying affidavit the landlord/Respondent claims to have sent the notice as contemplated in law and therefore issued a demand letter however both documents have not been filed before this tribunal

12. From the foregoing and analysis of the said notice of termination of tenancy, I find that it would be difficult to determine the validity of a notice that has not been submitted before this tribunal.

13. The applicant has also made claim of the respondent/landlord demanding for rent arrears that have been paid. In support of his claim he attaches and an unsigned demand note from Nairobi Homes for a sum of Kenya shillings Four hundred and ninety thousand, Four hundred and Twenty Six And Thirty Eight Cents (Kshs. 490,426. 38/=)

14. The tenant on the other side avers that the tenant is in arrears of rent and files a tenant’s account statement showing an arrears of Ksh 958,783. 98/= however he does not confirm or dispute the rent demand note attached by the applicant.

15. From the assessment of the documents it is difficult for the tribunal to determine the amount of rent arrears owed if any.

16. In the upshot and based on the foregoing the Tribunal finds that the reference by the Tenant is unmerited and makes the following orders; -a.The Applicant’s reference and notice of motion Application dated 7th August 2023 is hereby dismissed.b.The tenant to pay the rent arrears if any.c.Each party shall bear their own costs.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JANUARY 2024HON. MIKE MAKORI -MEMBER30. 01. 2024Delivered in the absence of parties