Mariga & 3 others v Maina [2025] KEBPRT 296 (KLR)

Mariga & 3 others v Maina (Tribunal Case E052 of 2025) [2025] KEBPRT 296 (KLR) (21 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 296 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E052 of 2025

N Wahome, Chair & Joyce Murigi, Member

May 21, 2025

Between

James Muthiru Mariga

1st Applicant

Imptyaj Virjiya of Hair & Beauty Requisite Limited

2nd Applicant

Joan Muthoni Kiarie of Kidboss Junction Limited

3rd Applicant

Kirgian Dordia Limited

4th Applicant

and

Rose Warau Maina

Respondent

Ruling

1. This Ruling pertains the Tenant’s/Applicants notice of motion application dated the 16/1/2025. The same is anchored on Sections 2, 6 and 7 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301 of the Laws of Kenya, herein after referred to as “the Act”.

2. The Application sought to have the landlady restrained from interfering with the Tenants quiet possession of the demised premises otherwise known as Nyandarua House Plot L. RNO.209/525 Nairobi.

3. The Application is founded on the poorly crafted reference dated 21/1/2025. The same seems to be to the effect that they had been issued with illegal termination notices and that they were required to vacate from their respective shops by the 28/2/2025.

4. It was the tenants case also that they had paid between Kshs.2,000,000/- and Kshs.7,000,000/- goodwill to the landlady on the understanding that their leases would be allowed to run their full terms. They are therefore of the opinion that the actions of the landlady are unfair as they are unlawful.

5. The landlady on her part responded to the Tenants case by her Replying Affidavit sworn on the 27/2/2025. In it she has demonstrated some demands by the city authorities to renovate the demised premises. She has also produced evidence to show her preparation to demolish and reconstruct.

6. To the landlady, the impugned termination notices dated 6/12/2024 and which were to take effect on the 28/2/2025 were all legitimate and lawful and requested this court to uphold the same.

7. We have perused all the pleadings, documents and submissions by the parties and in our opinion, the Tenant’s case shall rise or fall on the determination of the legality of the notices of termination dated the 6/12/2024 and allegedly served upon the Tenants on the 15/12/2024. We shall also decide on the issue of costs.

8. On the legality of the notices of termination dated 6/12/2024, we find guide in making a determination on the same from Section 4(2) of the Act. It same 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”.

9. The prescribed form is provided for by Regulation 4(1) of the Regulations to this Act. The same states that:-“A notice under Section 4(2) of the Act by a landlord shall be in form A in the schedule to these Regulations”.

10. These Act is a special piece of legislation whose provisions require strict and complete compliance thereof. We doubt that the notices dated 6/12/2024 met the required threshold of this law. This is more so when looked against decided cases on the issue by superior courts. In the celebrated case of Fredrick Mutua Mulinge T/A Kitui Uniform – vs- Kitui Housing Teachers Sacco Limited (2017) eKLR the court in similar circumstances held that:-“It is clear from the foregoing authorities that the tenancy notice dated 28/6/2014 was null and void for failing to give the Appellant two months notice as required under the Act and as such was of no legal effect. Life could not be breathed into the defective notice by the letter dated 1/7/2014 through which the Respondent purported to amend the effective date of the notice. The letter was not a notice in the prescribed form provided for under the Act”.

11. Therefore, the four notices of termination fail on the first limb of legitimacy. The same were also by letters which were outside the prescribed form provided by the law. We also doubt that the purported notices met the threshold set by Section 4(4) of the Act. The same provides that:-“No tenancy notice shall take effect until such date, not less than being two months after the receipt thereof by the receiving party, as shall be specified therein”.

12. In our view, for the notice to be compliant, it required to give the Tenant at least two (2) months to comply with the same. The law does not speak of 60 days or any other days but two months. The earliest time the said notices should have taken effect was on the 1/3/2025 after allowing the notice to run through the months of January and February, 2025.

13. The interpretation and General provisions Act (Cap. 2) laws of Kenya at Section 3(1) has interpreted a month to mean:-“A calendar month”.

14. The Blacks Law Dictionary on its part defines a calendar month as:-“one of the months of the year as enumerated in the calendar”.Order 50 Rule 1 of the Civil Procedure Rules on the other hand provides that-:“Where by these Rules or by any judgement or order given or made, time for doing any act or taking any proceedings is limited by months, and where the “word month” occurs in any document which is part of any legal procedure under these Rules, such time shall be computed by calendar months unless otherwise expressed”.

15. It therefore follows that the notice of termination of the Tenants respective tenancies did not meet very critical and fundamentals requirements of the law and the same were therefore null and void abinitio and have no effect in law.

16. We would therefore proceed to dismiss the same and do uphold the Application and the reference herein dated the 16/1/2024 and 21/1/2025. In our view, having over ruled the impugned notices of termination, nothing is left to be discoursed on around the said reference.

17. On costs, we follow the conventional wisdom of Section 12(1) k of the Act to the effect that costs follow the event. The Tenants being the successful parties, it follows that they should be awarded the costs of these proceedings.

18. In the final analysis, the orders that commend to us are the following:-i.That the Tenants shall be allowed complete quiet possession of their respective shops as found within Nyandarua House Plot LR No.209/525/Nairobi.ii.That the Landlady shall pay costs of Kshs.25,000/- each to the Tenants to be offset from the rent payable.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF MAY, 2025. HON. NDEGWA WAHOME, MBS - PANEL CHAIRPERSONHON. JOYCE MURIGI- MEMBERBusiness Premises Rent Tribunal. BPRT.Ruling delivered in the presence of Counsel for the Landlady/Respondents and in the absence of Tenants Counsel.HON. NDEGWA WAHOME, MBS - PANEL CHAIRPERSONHON. JOYCE MURIGI- MEMBERBusiness Premises Rent Tribunal. BPRT.