Makokha v Kinyanjui [2025] KEBPRT 186 (KLR)

Makokha v Kinyanjui (Tribunal Case E867 of 2024) [2025] KEBPRT 186 (KLR) (27 January 2025) (Ruling)

Neutral citation: [2025] KEBPRT 186 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E867 of 2024

P Kitur, Member

January 27, 2025

Between

thomas Aquinas Makokha

Tenant

and

Edward Kinyanjui

Landlord

Ruling

A. Parties 1. The Landlord is the beneficial owner of the property known as Kawangware Lr/dag/riruta/3233 (hereinafter referred to as ‘the suit premises’).

2. The firm of Bonbegi & Company Advocates represents the Landlord.

3. The Tenant occupies the suit premises as a tenant of the Landlord.

4. The firm of Kabuthia Kamau & Associates represents the Tenant.

B. The Dispute Background 5. From the pleadings submitted to this tribunal, it is evident that the parties have maintained a tenancy relationship for 20 years. During this time, the tenant has occupied the suit premises in exchange for a monthly rent of Kshs. 11,500/- paid to the landlord. The tenancy arrangement is, however, unwritten.

6. The tenancy proceeded without interruption until the Landlord issued a notice on 11th June 2024 seeking to terminate it due to the Tenant's two-month default in rent payment.

7. The tenant moved this tribunal by way of reference dated 13th August 2024 filed together with an Application of even date seeking, inter alia, an order of the court prohibiting the Respondents and/or their servants and/or employees, agents from unlawfully intercepting/harassing, intimidating and/or evicting, closing, attaching or threatening/interfering/tampering, disposing by or in any manner whatsoever and/or howsoever with the Applicant quite occupation and lawful enjoyments of the suit premises in Kawangware, LR/DAG/Riruta/3233 pending hearing and determination of this application.

8. The Tenant based the application on the ground that it was facing unlawful eviction by the Landlord over alleged rent arrears. The Tenant claims to have consistently paid rent throughout the tenancy period. Additionally, the Tenant argues that the termination notice issued by the Landlord is defective as it contravenes the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301) of the Laws of Kenya (hereinafter referred to as 'the Act').

9. The court on 13th August 2024 issued interim orders as prayed by the tenant.

10. In response, the Landlord filed a notice of preliminary objection dated 3rd September 2024, challenging the tribunal's jurisdiction to hear and determine the Tenant's case. The Landlord argued that the tenancy relationship between the parties ceased to exist upon the expiry of the termination notice dated 11th June 2024. Additionally, the Landlord contends that the Tenant's application is legally flawed and should be dismissed.

11. Parties took directions and agreed to dispose of the Preliminary Objection by way of Written Submissions, which were duly filed by both parties.

C. List Of Issues For Determination 12. Having given full consideration to the Preliminary Objection raised, the main issue for determination is;a.Whether the Tenant is entitled to the reliefs sought.

D. Analysis And Findings 13. The Landlord has chosen to respond to the Tenant’s Application by way of a Notice of Preliminary Objection which although curious, noting the circumstances of the case, he is entitled to and will be considered in that light. Jurisdiction is crucial. Once it is challenged, it must be decided before the Tribunal can continue with any matter. If jurisdiction is found lacking, the Tribunal must stop its proceedings. In the case of Owners of the Motor Vessel ‘Lillian” (s) v Caltex Oil (Kenya) Ltd [1989] KLR1, the Court stated as follows:“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court had no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

14. The Landlord's preliminary objection contests the tribunal's jurisdiction in the Applicant's case, arguing that no tenancy relationship exists between the parties following the expiration of the Landlord's notice to terminate tenancy dated 11th June 2024. This is a factual issue, which to my mind requires an interrogation of the facts and thus not one which can be dealt with on a pure point of law basis.

15. The question therefore arising is whether there existed a tenancy relationship between the Tenant and the Landlord upon filing of the application dated 13th August 2024.

16. It is the landlord's case that it served upon the tenant a notice to terminate the tenancy in accordance with the provisions of the Act. It states that the tenant ignored to respond to the said notice and upon the lapse of the two months, the tenancy effectively terminated.

17. The tenant argues that the notice was defective for failing to meet the statutory requirement of a notice to terminate a tenancy as provided for in the Act. It states that the notice failed to provide the 2-month notice period thereby rendering it defective. This is quite glaring and apparent on the face of the notice. That omission cannot be wished away and the Tribunal’s jurisdiction on it challenged.

18. The Landlord has acknowledged the omission of the required two-month notice period in the termination notice, attributing it to a typographical error.

19. The Act requires a landlord who wishes to terminate or alter the terms of a controlled tenancy to issue a notice in the prescribed form. Section 4 of the Act provides as follows;Termination of, and alteration of terms and conditions in, controlled tenancy2. 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.

20. Subsection 4 further provides :No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party, as shall be specified therein:Provided that—i.where notice is given of the termination of a controlled tenancy, the date of termination shall not be earlier than the earliest date on which, but for the provisions of this Act, the tenancy would have, or could have been, terminated;ii.where the terms and conditions of a controlled tenancy provide for a period of notice exceeding two months, that period shall be substituted for the said period of two months after the receipt of the tenancy notice;iii.the parties to the tenancy may agree in writing to any lesser period of notice.The Act provides for the procedure of terminating a controlled tenancy.

21. Provisions of the Act must be complied with strictly, even more so when a Landlord is enforcing his right to bring the tenancy relationship to an end.

22. I therefore proceed to Order as follows:

E. Ordersa.The Landlord’s Notice to Terminate or Alter Terms of Tenancy dated 11th June 2024 is declared defective and shall be of no effect.b.The Respondents and/ or their servants and/or employees, agents be and hereby prohibited forthwith from unlawfully intercepting harassing, intimidating and/or evicting, closing, attaching or threatening/ interfering, tampering, disposing by or in any manner whatsoever and/or howsoever with the Applicant quite occupation and lawful enjoyment of the suit premises in Kawangware, LR/DAG/Riruta/3233. c.The OCS Muthangari Police Station to assist in compliance with these Orders.d.The Complaint dated 13th August 2024 is settled in those terms.e.The Landlord is at liberty to issue any notice it so desires with strict compliance to the provisions of Cap 301. f.Costs are awarded to the Tenant assessed at Kshs, 20,000/= deductible from monthly rent.g.The file is marked as closed.

HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon P. Kitur this 27th day of January 2025 in the presence of Kamau for the Tenant and in the absence of the Landlord.HON P. KITURBUSINESS PREMISES RENT TRIBUNAL