Manut Madut Anei Machot v Grace Wangari Kimani [2022] KEBPRT 98 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO. E440 OF 2021 (NAIROBI)

MANUT MADUT ANEI MACHOT………………….….……TENANT/APPLICANT

VERSUS

GRACE WANGARI KIMANI……………………….…LANDLORD/RESPONDENT

RULING

A. Parties and Representatives

1. The Applicant Manut Madut Anei Machot is the tenant and rented space on the suit property Nairobi/ Block 32/303  (hereinafter known as the ‘Tenant’).

2. The firm of Modi & Co. Advocates represent the Applicant/Tenant in this matter. info@modiadvocates.co.ke

3. The Respondent Grace Wangari Kimani is the Landlord and registered owner of the suit property Nairobi/ Block 32/303 (hereinafter known as the ‘Landlord’).

4. The firm of Kinaro &Associates represent the Landlord/Respondent in this matter. kinaroadvocates@gmail.com

B. The Dispute Background:

5. The Landlord and the Tenant entered into a tenancy agreement dated 5th March 2020in respect of a shop erected on the suit property.

6. The Landlord issued the Tenant with a notice to terminate tenancy dated 1st July 2021and the same was to take effect from 2nd July to 1st August 2021.

7. The Tenant in response to the notice moved this tribunal by way of reference and a notice of motion application dated 23rd August 2021 and 19th August 2021 respectively under Section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The tenant  was seeking amongst other orders that pending the hearing and determination of the reference that the Tribunal be pleased to give orders restraining the Landlord and their agents from harassing and/or intimidating the tenant/applicant, interfering with the tenants business and quiet possession on the suit property. Further that the Tribunal grant leave to the Tenant to deposit the monthly rent to the Tribunal.

8. On 1st September 2021 the Tribunal gave injunctory orders as against the Landlord restraining them from interfering with the tenant’s quiet possession.

9. The Tenant filed a reference and notice of motion Application dated 23rd August 2021and 19th August 2021 which pleadings form the basis of this claim.

10. The Landlord has filed a replying affidavit dated 8th September 2021.

C. List of Issues for Determination

11. It is the contention of this Tribunal that the issues raised for determination are as follows;

Whether the notice to terminate tenancy issued by the Landlord is valid?

D. Analysis and Findings

Whether the notice to terminate tenancy issued by the Landlord is valid?

12. Termination of a controlled tenancy is provided for under section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. The Section provides that;

“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 provisions of this Act”

13. Section 4 (2) and (4) of CAP 301 provide that;

4(2) 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.

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, as shall be specified therein.

14. In the present case, the Landlord issued the Tenant with a notice to terminate tenancy dated 1st July 2021and the same was to take effect from 2nd July 2021 and lapse on 1st August 2021.

15. From the provisions stated above the period within which this notice was to take effect does not satisfy the elements of a valid notice. The notice was to take effect in less than the stipulated period of two months.

16. Based on this it is the contention of the Tribunal that the notice was not in the form required under Cap 301 and hence it was not valid.

17. Further Section 4(5)of Cap 301 provides that;

A tenancy notice shall not be effective for any of the purposes of this Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration or reassessment 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.

18. The Tenant moved this Tribunal on 23rd August 2021 which the Tribunal observes is within the period stipulated above. As such the Landlord was aware of the Tenant’s lack of willingness to comply with the issued notice.

19. From the foregoing, it is the view of this Tribunal that the notice issued by the Landlord is not valid as it was not issued in the proper form as stipulated under Cap 301.

E. Orders;

a) The upshot is that the Tenant’s reference dated 23rd August 2021 and application dated 19th August 2021 are hereby upheld in the following terms;

b) The notice to terminate tenancy dated 1st July 2021 is hereby declared invalid.

c) The Tenant shall pay the rent arrears as per the Landlord’s tabulation from the month of September 2021 to February 2022within the next 30 days failure to which the Landlord shall be at liberty to distress.

d) The Tenant shall keep paying rent at the rate of Kshs. 17,000 on or before the 5th of every month as per the agreement.

e) The Tenant’s reference is settled on similar terms.

f) Each party shall bear their own costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 4thday ofFebruary, 2022 in the presence of Kimaniholding brief for Kinoro for the Landlord and in the absence.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL