Kipepeo Foundation Limited v Presbyterian Church of East African Nakuru West & 2 others [2022] KEBPRT 822 (KLR)

Kipepeo Foundation Limited v Presbyterian Church of East African Nakuru West & 2 others (Tribunal Case E045 of 2022) [2022] KEBPRT 822 (KLR) (Civ) (7 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 822 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E045 of 2022

Andrew Muma, Vice Chair

November 7, 2022

Between

Kipepeo Foundation Limited

Tenant

and

Presbyterian Church of East African Nakuru West

Landlord

and

Jojean Property Limited

Agent

and

Tango Auctioneers & General Merchants

Respondent

Ruling

A. Parties and Representatives 1. The Applicant Kipepeo Foundation Limited is the tenant and had rented space on the Suit Property Nakuru Municipality Block 11/2 for the business. (hereinafter known as the ‘tenant’)

2. The firm of Konosi & Company Advocates represent the Tenant/Applicant in this matter. konosiadvs@konosiadvocates.co.ke

3. The 1st Respondent Presbyterian Church of East Africa Nakuru West is the landlord and rented out space for the business in the suit property to the tenant (hereinafter the “landlord”)

4. The 2nd Respondent Jojean Properties are the alleged agents for the 1st Respondent and manage the Suit Property

5. The 3rd Respondents Tango Auctioneers are the Auctioneers acting under the instructions of the 1st and 2nd Respondents.

6. The firm of Mirugi Kariuki & Co. Advocates represent the Respondents in this matter. mirugi@mirugi.co.ke

B. The Dispute Background 7. The Tenant has filed a Reference and a Notice of Motion application dated 4th January 2022 under section 12 (4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Tenant was seeking that this Honourable Tribunal grants orders restraining the Landlord from harassing, trespassing, evicting and interfering with the quiet possession by the tenant pending the hearing and determination of this matter.

C. The Tenant’s Claim 8. The tenant filed a Reference and a Notice of Motion Application dated 1st April 2022 to which he obtained interim reliefs.

9. The Tenant has also filed a Further Affidavit dated 26th August 2022.

D. List of issues for determination 10. It is the contention of this Tribunal that the issues raised for determination are as follows;I. Whether the increase of rent by the Landlord was lawful and whether the tenant is in arrears?

E. Analysis and FindingsWhether the increase of rent by the Landlord was lawful and whether the tenant is in arrears? 11. Section 4(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya provides that;4(2) 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.4(4) No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party

12. The above provision requires that before the Landlord can alter the terms of a tenancy, they must issue a notice of not less than two months to the Tenant.

13. In the present case the Tenant has averred that they held discussions with the Landlord in relation to a new Lease Agreement in November 2020. They however did not agree on the terms of the said Lease Agreement. Thereafter the tenant received a letter from the Landlord alleging that they were in arrears calculated at the new rates.

14. In March 2022 they received a Proclamation Notice issued by the Landlord in an attempt to distress for the alleged rent arrears.

15. Having perused the file I do not find any evidence showing that the Tenant paid rent at the new rates. They have been paying at the old rate of Kshs. 160,000 per quarter. There is also no evidence of the new lease agreement with the new terms as alleged by the Landlord.

16. In addition to the above there is no evidence of the Landlord having issued a Notice to increase rent. Being a Controlled Tenancy, they are expected to conform to the requirements of CAP 301 when altering the terms of the Tenancy.

F. Ordersa.The upshot is that the Tenant’s Reference and Application dated 1st April 2022 is hereby allowed in the following terms. .b.The Tenant shall keep paying rent at the agreed old rates of Kshs. 160,000 per quarter as and when it falls due.c.Any arrears on this old rate of Ksh 40,000 P.M is payable within the next 30 days in default landlord at liberty to Distress.d.The Landlord shall be at liberty to issue a Notice to Increase rent accompanied by a Valuation Report justifying the increase.e.Each party shall bear their own Costs.

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon A. Muma this 7th day of November 2022 In the presence of Ekesa holding brief for Konosi for the Tenant and Ms Karanja for the Landlord.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNA