Lisa Werner v Stephen Mboya, Dominic Ndiku & Dennis Njeri [2022] KEBPRT 8 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E644   OF 2021  (NAIROBI)

LISA WERNER.............................APPLICANT/TENANT

VERSUS

STEPHEN MBOYA..... 1ST RESPONDENT/LANDLORD

DOMINIC NDIKU................2ND RESPONDENT/AGENT

DENNIS NJERI...........3RD RESPONDENT/CARETAKER

RULING

1. The Tenant moved this Tribunal vide a reference dated 2nd November 2021 complaining that the Landlord had threatened to evict her using illegal notice to vacate and refused to accept rent.

2. The tenant simultaneously filed a notice of motion dated 2nd November 2021 seeking for injunctive reliefs against the Landlord from interfering with her quiet occupation and lawful enjoyment of the suit premises being Shop no. A 9, Fashion Wear Stalls Exhibition pending hearing of the complain.

3. The application is supported by the affidavit of tenant sworn on 2nd November 2021 and the grounds on the face of the application.

4. The genesis of the dispute is a notice to vacate dated 29th September 2021 which the landlord served upon the tenant to move out of the suit premises by end of October 2021 as the management intended to use the space for its own purpose.

5. The tenant deposes that she was threatened with forceful eviction from the premises and having established business goodwill would suffer immense loss and damage.  The landlord is said to harbor an intention of letting the premises to another tenant without following the right procedure.

6. On 26th November 2021, the tenant filed yet another application seeking an order to reopen the business premises and her reinstatement and in default be authorized to break the locks and gain access under supervision of OCS Kamukunji Police Station pending the hearing and determination of the case.

7. The tenant further seeks for restraining orders in terms of the application dated 2nd November 2021.  The application is supported by the applicant’s affidavit sworn on 26th November 2021 and the grounds on the face thereof.

8. Interim orders were granted ex-parte in both applications on 3rd November 2021 and 26th November 2021 pending hearing of the application inter-partes.

9. The application dated 26th November 2021 is opposed through the affidavit of 1st Respondents’ sworn on 29th November 2021. It is the Respondent’s case that the tenant rented the premises to carry out business of selling wines and spirits on take away basis and not to run a club as is the case.

10. It is deposed that the tenant illegally sells wines and spirits to customers who drink the said alcohol and  the customers sit on the staircase of the building and block other tenants from accessing their business premises.

11. The agent on seeking to intervene was assaulted which matter was reported to Kamukunji Police Station as per annexure “PM1”.

12. The landlord deposes that he intends to serve the tenant with termination notice on account of failure to obey the terms and rules of the tenancy.

13. The landlord also filed a motion dated 9th December 2021 seeking for leave to evict the tenant for harassing and intimidating other tenants and disobeying the tenancy agreement.  The application is supported by the affidavit of the 1st Respondent/Landlord sworn on 16th December 2021.

14. The application is premised upon the Landlord’s contention that the tenant has been selling wines and spirits which is consumed within the premises instead of being taken away.  This results into use of staircases by customers who block other tenants from enjoyment of their tenancies.

15. As a result, the landlord deposes that some of the tenants have opted to shift from the premises resulting into loss on his investment.

16. The application is not signed by the applicant and the affidavit was sworn seven (7) days after.  I have not seen any evidence of service of the application upon the tenant/applicant.  I have also not seen any notice of termination of tenancy served upon the tenant.

17. The tenant swore a supplementary affidavit on 14th February 2014 wherein she denies accusations made by the landlord in the replying affidavit.

18. The applications were directed to be disposed of by way of written submissions.  Both parties complied by filing submissions on the applications dated 3rd November 2021 and  26TH November  2021.

19. The issues for determination herein are:-

a. Whether the tenant is entitled to the orders sought in the applications dated 3/11/2021 and 26/11/2021.

b. Who is liable to pay costs?

20. The tenant’s applications are premised upon the notice to vacate dated 29th September 2021 marked ‘L.W1’ and closure of her business premises by the landlord.

21. Section 4(1) of Cap. 301 provides as follows:-

“4(1) Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall 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 the following provisions of the Act”.

22. Section 4(2) provides as follows:-

“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”.

23. I have looked at the notice to vacate marked ‘LW1’ and I am of the firm view that it is not the prescribed notice envisaged under section 4(2) of Cap. 301, Laws of Kenya.  It is invalid and as such of no legal effect.

24. Whatever reasons the landlord has for requiring the tenant to vacate the suit premises, he has a legal obligation to comply with the law and no amount of negative allegations would persuade this Tribunal to allow the landlord to evict the tenant without issuing the prescribed notice.

25. As such, I am of the considered view that the applicant has been able to demonstrate that she faced imminent eviction by the landlord when she came to court.  She was therefore entitled to seek for the Tribunal’s protection as she did.

26. I therefore find and hold that the tenant has satisfied conditions for the grant of an injunction espoused in Giella – vs- Cassman Brown & Co. Ltd (1973) EA  358.

27. In the premises, the final orders that commend to me are:-

i. The application dated 26th November 2021 is allowed in terms of prayers 3 and 4 until the tenancy is lawfully terminated.

ii. The landlord is at liberty to serve a proper notice under section 4(2) of Cap. 301, Laws of Kenya.

iii. The notice to vacate dated 29th September 2021 is declared invalid and of no legal effect.

iv. The tenant’s reference dated 2nd November 2021 is allowed with costs.

v. The tenant’s costs are assessed at Kshs.10,000/- to be deducted from the rent payable to the landlord if not settled within Thirty (30) days hereof.

RULING DATED, SIGNED AND DELIVERED THIS 25TH DAY OF MARCH 2022 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

3rd Respondent present in person

No appearance for the Tenant/Applicant