Martin Njoroge & 2 others v Lydia Mumbua & 2 others [2022] KEBPRT 694 (KLR)

Martin Njoroge & 2 others v Lydia Mumbua & 2 others (Tribunal Case E514 of 2022) [2022] KEBPRT 694 (KLR) (9 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 694 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E514 of 2022

Andrew Muma, Vice Chair

September 9, 2022

Between

Martin Njoroge

1st Claimant

Margaret Njoki & another

2nd Claimant

and

Lydia Mumbua

1st Respondent

John Mutiya & another

2nd Respondent

Ruling

Parties and representatives 1. The applicants are the tenants and rented space on the suit premises known as LR 36/11/64 situated along 5th Street Eastleigh. ('hereinafter known as the 'tenant').

2. The firm of Cuna & Associates represent the tenant/applicant in this matter. info@cunaadvocates.co.ke

3. The respondents are the landlords and rented out space on the suit premises (hereinafter known as the 'landlord')

4. The firm of Nzavi & Co Advocates represent the respondent/tenant in this matter. nzavimaurice@yahoo.com

The dispute background 5. On June 13, 2022 the tenants moved this tribunal by way of a notice of motion application under certificate of urgency dated July 6, 2021 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 application that the tribunal restrain the landlords from interfering with their possession pending the hearing and determination of the suit.

Jurisdiction 6. The jurisdiction of this tribunal is not in dispute.

The tenant’s claim 7. The tenant filed a references and applications under certificate of urgency which pleadings form the basis of this claim. Where necessary the files were consolidated. The landlord’s claim

8. The landlord has filed a replying affidavit dated June 15, 2022 and August 2, 2022 and a supplementary affidavit dated June 20, 2022.

9. The parties filed submissions and the matter was fixed for ruling on August 18, 2022.

List of issues for determination 10. This tribunal finds that the issues raised for determination are as follows; whether the termination notice issued by the landlord is valid?whether the landlord has established grounds to warrant termination of the tenancies analysis and findingsWhether the termination notice issued by the landlord is valid?

11. 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'

12. 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

13. In the present case the landlord issued the tenants with notices to terminate tenancy on the grounds that they wanted to take vacant possession of the premises. The said notices were issued on May 16, 2022 and were set to take effect on July 17, 2022. As per the provisions of Cap 301 above the said notices can be deemed to be valid since they give the statutory period of 2 months. Even though it is not in the prescribed for this tribunal will not lay undue regards to technicalities as it states the exact reason for such termination and in addition as already stated the time frame was adequate.

14. Additionally, the Landlord has provided before this tribunal that the property originally belonged to one Mr Wilson Musyoki who is now deceased. The court then issued a confirmation of grant conferring upon them power as administrators of the estate. The grant indicates that there are 15 beneficiaries who are to own the property in equal shares. As a result, the property cannot be deemed to be owned solely by the respondents.

15. As beneficiaries of the estate they agreed to dispose of the property and in turn entered into a sale agreement dated May 11, 2022 with Mr Abdiwahab Mohammed Hussein and Mahad Adan Abdullahi. The sale agreement has been annexed in the landlord’s replying affidavit.

16. It is in light of this agreement that the landlord has issued the notices to terminate tenancy to the tenants. Having perused the agreement, I find that the landlord was required to fulfill their obligations by August 10, 2022.

17. This tribunal has perused all the documents provided and indeed find that the landlords have sufficiently satisfied the requirement for adequate and satisfactory reasons for termination i find that the deceased family members ought to have a say on what they want to do with their late deceased property and this court should not be seen to hinder the process considering it is the succession court that ordered the property to be shared amongst the beneficiaries. The family having chosen to sell and share proceeds over sharing of rent this tribunal should not be seen to be subverting their will.

18. The presence of the tenants in the premises prevents the landlord from fulfilling their contractual obligations more particular provide vacant possesion to the purchasers i find that this together with the valid notices to the tenants issued i am persuaded to uphold the validity of the notices and require that the tenant grant vacant possession of the premises to the landlord.

19. In addition I take cognisance of the fact that the tenants already stopped paying rent when they got the notices.

Orders 20. The tenant’s references and notice of motion application dated June 13, 2022 are hereby dismissed in the following terms;a.The tenants shall vacate within 5 days after which the landlord shall have vacant possession of the premises to enable completion of the sale agreement dated May 11, 2022. b.OCS Pangani Police Station to ensure compliance.c.Each party shall bear their own costs.

HON A MUMA VICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. MAY THIS 1ST DAY OF SEPTEMBER 2022 IN THE PRESENCE OF NZAVI FOR THE RESPONDENTS/LANDLORDS, MS AUNA FOR THE TENANTS IN E514 AND MS MUGO FOR THE TENANTS IN E494. HON A. MUMA VICE CHAIRBUSINESS PREMISES RENT TRIBUNALGiven under my hand and Seal of this Court on 2022-09-09 14:01:16Signed By: Hon Andrew Muma (vice Chairperson) (administer Judgements)The Judiciary of Kenya. Business Premises Rent Tribunal NairobiDate: 2022-09-09 14:01:16The Judiciary of Kenya