Kungu v Gathoni [2022] KEBPRT 878 (KLR)

Kungu v Gathoni (Tribunal Case E127 of 2022) [2022] KEBPRT 878 (KLR) (Civ) (16 December 2022) (Ruling)

Neutral citation: [2022] KEBPRT 878 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E127 of 2022

Gakuhi Chege, Vice Chair

December 16, 2022

Between

Sarah Kungu

Applicant

and

Damaris Gathoni

Tenant

Ruling

1. Through a motion dated September 30, 2022, the landlord moved this Tribunal seeking for an order of vacant possession against the tenant in respect of the suit premises known as stall No. 09 along Menengai Street.

2. The application is predicated upon a statutory notice allegedly served upon the tenant seeking to terminate her tenancy in respect of the suit premises with effect from 1st August 2022 to which she did not file a reference.

3. According to the landlord, the respondent is a perennial rent defaulter who pays rent when she wanted or does not pay until reminded to do so. The statutory notice is annexed to the supporting affidavit and marked ‘SK1’.

4. It is the landlord’s case that the Respondent’s failure to oppose the termination notice makes her a trespasser under section 10 of Cap. 301Laws of Kenya on the basis of which she seeks for an order of vacant possession.

5. The termination notice marked ‘SK1’ sets out the ground that the tenant defaulted in paying rent and persistently delayed in doing so whenever it is due. The same is also based on the ground that the landlord would like to use the premises for a period of not less than one year.

6. The landlord simultaneously filed a complaint of even date on the same grounds and this ruling shall therefore apply to the said complaint under section 12(4) pursuant to which it is brought.

7. The application is opposed through the tenant’s replying affidavit sworn on October 23, 2022 wherein she denies having been served with any termination notice and complains that the purported notice was not attached to her copy of the application.

8. She contends that she was only served with illegal notices dated September 14, 2022 and September 27, 2022 by the landlord’s agent known as Janester Agencies Limited marked ‘DM1’ and DM2’ requesting her to vacate. She contends that she has been a faithful tenant.

9. On September 27, 2022, the landlord is accused of refunding the deposit through Mpesa but later in the month of October 2022 requested the tenant to pay the said amount back to her which she did. She had previously reversed the rent payment made through Mpesa on 21/9/2022. The tenant accuses the landlord of seeking to frustrate her to vacate the premises without considering the money invested in her business.

10. I am now required to determine the following issues in this matter:-a.Whether the landlord is entitled to the reliefs sought in the application dated September 30, 2022 and the complaint of even date.b.Who is liable to pay costs?

11. Section 4(2) of Cap. 301, Laws of Kenya provides that a landlord who wishes to terminate a controlled tenancy shall give notice in that behalf to the tenant in the prescribed form.

12. Section 4(5) of the said Act provides as follows:-“A tenancy notice shall not be effective for any of the purposes of the Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration or assessment 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”.

13. Section 4 (6) of the Act provides that:-“A tenancy notice may be given to the receiving party by delivering it to him personally or to an adult member of the family or to any other servants residing within or employed in the premises concerned or to his employer or by sending it by prepaid registered post to the last known address and any such notice shall be deemed to have been given on the date on which it was so delivered or on the date of postal receipt given by a person receiving the letter from the Postal authorities as the case maybe”.

14. In the instant case, the notice marked ‘SK1’ complies with the requirements of section 4(2) & 4(5) of Cap. 301 Laws of Kenya. However, there is no evidence of how the said notice was served upon the tenant. Secondly, there is no affidavit of service of the said notice to confirm that it was indeed served upon the tenant.

15. I have seen the notices marked ‘DM1’ & DM2’ annexed to the replying affidavit and the same do not in any way refer to the landlord’s purported notice marked ‘SK1’. This makes me doubt service of the latter notice and agree with the tenant that in absence of such service, the notice is a cropper.

16. Secondly, the grounds set out in the said notice are not supported by the materials placed before me. There is absolutely no evidence that the tenant is in rent arrears and that she has persistently delayed to pay rent when it falls due and payable. I have also not seen any evidence that the landlord intends to use the premises for more than one year as set out therein. Even if the notice had been served upon the tenant, the grounds set out therein have not been established as required under section 7(1) of Cap. 301, Laws of Kenya.

17. In the circumstances, the application and complaint filed by the landlord herein do not meet the legal threshold of balance of probabilities set out in the cases of NM & Another (suing as Representatives of the Estate of I.M (deceased) – vs- Ndungu Isaac (2020) eKLR and the case of William Kabogo Gitau – vs- George Thuo & 2 Others(2010) I KLR 526 & Palace Investment Ltd – vs- Geoffrey Kariuki Mwenda &another(2015) eKLR. It is therefore for dismissal.

18. In regard to costs, the same are in this Tribunal’s discretion under section 12(1) (k) of Cap. 301, Laws of Kenya but always follow the event unless for good reasons otherwise ordered.

19. In the foregoing circumstances, the following orders commend to me in this matter under section 12(4) of Cap. 301, Laws of Kenya:-a. The Landlord’s application dated 30th September 2022 and the complaint of even date is dismissed with costs to the tenant.b. The tenant’s costs are assessed at Kshs.10,000/- to be offset against the rent account unless paid within the next fourteen (14) days hereof.

It is so ordered.

RULING DATED, SIGNED & DELIVERY VIRTUALLY THIS 16TH DAY OF DECEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling read in the presence ofLandlord present in personTenant present in person2