Macharia v Legal representative of the Estate of Kiriga Githuba & another [2024] KEBPRT 420 (KLR)

Macharia v Legal representative of the Estate of Kiriga Githuba & another (Tribunal Case E953 of 2023) [2024] KEBPRT 420 (KLR) (17 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 420 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E953 of 2023

M Makori, Member

January 17, 2024

Between

Simon Gathii Macharia

Applicant

and

The legal representative of the Estate of Kiriga Githuba

1st Respondent

Jimily Properties Limited

2nd Respondent

Ruling

1. The present suit was filed vide an application dated 2/10/2023 and amended 26/10/2023 by the Claimant/Applicant against the Respondents contesting the eviction notice dated 1/8/2023.

2. The Respondents filed a Replying Affidavit dated 16/10/2023, supplementary affidavit dated 10/11/2023 and written submissions dated 13/11/2023.

3. From the foregoing and the pleadings filed by parties, the single most issue for determination is whether the Demand Notice dated 1/8/2023 is legal valid and enforceable and what are the appropriate orders in the circumstances.

4. 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.

5. 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) Act Cap 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.”

6. 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.

7. 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 Act 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 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.”

8. 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.

9. The Landlord’s notice of termination of the tenancy was not in Form A prescribed by the Act but rather in form of a letter. The notice of termination of the tenancy herein therefore does not meet the requirements of the Act with regard to being in a prescribed form.

10. For Grounds for termination of the tenancy by the Landlord I am guided by the provision of section 4(1) of the Act provides that no tenancy shall be terminated, or no term or condition, or right or service enjoyed by the tenant shall be altered otherwise than in accordance with the provisions of the Act.

11. The Act further provides for the grounds on which the Landlord may seek to terminate the tenancy in Section 7 Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 Laws of Kenya the grounds stated under this provision and which are applicable herein include;i.that the tenant has defaulted in paying rent for a period of two months after such rent has become due or payable or has persistently delayed in paying rent which has become due or payable;ii.that the tenant has committed other substantial breaches of his obligations under the tenancy, or for any other reason connected with the tenant’s use or management of the premises comprised in the tenancy; andiii.that on the termination of the tenancy the landlord intends to demolish or reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises;

12. This case can be distinguished from the case of strict termination of tenancy relationship. I have had a look at the impugned letter dated 1/8/2023 and I am convinced that it did not and was not intended to constitute in proper sense the notice envisioned in law under Section 4 of the Act.

13. The lease between the parties became operational on the 3/10/2018 running for 5 years and was therefore presumably to terminate on 3/10/2023 unless renewed by the parties.

14. In my mind the letter dated 1/8/2023 could not be construed as an eviction notice but rather a notice of intention of not renewing the lease and for which reason the Tenant/Applicant was supposed to vacate the premises upon the lapse of the lease.

15. In the upshot and based on the foregoing the Tribunal find that the reference by the Tenant is merited and makes the following orders; -a.The Tenant/Applicant application dated 2/10/2023 and amended on 26/10/2023 is devoid of merit and is hereby dismissed.b.The Tenant/Applicant to yield the property to the Respondent and clear any outstanding arrears within 14days of this Ruling.c.Each party to bear its own costs.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 17TH JANUARY, 2024HON. MIKE MAKORI (MR.) - MEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Kirimi for the landlord/RespondentIn the absence of the tenant/Applicant