Mbarak Pit Contractor v Shree Mombasa Lohana Community Registered Trustees [2022] KEBPRT 858 (KLR)

Mbarak Pit Contractor v Shree Mombasa Lohana Community Registered Trustees (Tribunal Case E119 of 2021) [2022] KEBPRT 858 (KLR) (11 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 858 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E119 of 2021

Andrew Muma, Vice Chair

November 11, 2022

Between

Mbarak Pit Contractor

Tenant

and

Shree Mombasa Lohana Community Registered Trustees

Landlord

Ruling

A. Parties and their Representative 1. Mbar ak Pit Contractor is the tenant of premises known as Plot No MSA/XVI/15 Shop No 6/12.

2. The firm of Khatib & Company Advocates act for the tenant in this reference. advkhatibmsa@gmail.com

3. Shree Mombasa Lohana Community Registered Trustees the registered owner of all the premises known as Plot No MSA/XVI/15 Shop No 6/12.

4. The firm of MKan & Company Advocates act for the landlord in this reference.mkan.co.advocates@gmail.com

B. The Dispute Background. 5. On October 27, 2021, the landlord served a notice to the tenant. The effective date of the notice was indicated as January 1, 2022. The landlord also indicated that the ground for issuing the notice was that rent current paid was considered lower as compared to other premises in the neighborhood. The notice was issued pursuant to section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.

6. On May 19, 2022, the tenant filed a preliminary objection citing the notice to be vague and that it did not disclose the actual intention of the landlord whether it was alteration of terms of the tenancy or a notice to the tenant to vacate the premises.

7. The parties were then directed to file their submissions in respect of the preliminary objection. This forms the crux of the ruling herein.

C. The Tenant’s Case 8. The tenant avers that the tenancy notice was rightly issued under section 4(2) of theLandlord and Tenant (Shops, Hotels and Catering Establishments) Act. However, the notice is too vague as it does not explicitly state whether it is for alteration of terms of the tenancy or for termination of tenancy.

9. The tenant notes that at tenancy notice issued states that the notice shall be terminated effective January 1, 2022 but proceeds to suggest alteration of rent from the present Kshs 5,830 to Kshs 50,000. This makes it unclear on how to proceed.

D. The Landlord’s Case 10. The landlord contends that the preliminary objection is an abuse of the court process and should be dismissed. The landlord avers that section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, provides a prescribed form which is a mandatory requirement.

11. Further, the landlord contends that the tenancy notice specifically provides for alteration of terms with the specified rates duly outlined.

12. The jurisdiction of this tribunal is not in dispute.

E. Analysis of Law and Determination. 13. From the above-mentioned set of facts, I find that the issue for determination isi.Whether the notice dated October 27, 2021 is valid.

F. Whether the Notice Dated October 27, 2021 is Valid 14. Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, provides a prescribed mandatory form to be used when altering the terms of a tenancy or terminating the tenancy. The tenancy notice must indicate the following;1. What it intends to do either altering the terms or terminating the tenancy;2. In instance of alteration of terms, the proposed alteration;3. The grounds for the alteration or termination of the tenancy; and4. Provide the recipient an opportunity to respond whether they agree or disagree with the proposed terms.

15. The object of the tenancy notice is to give clarity as to the intent of either party and comply with the requirements. The response required under paragraph 4 of the notice is dependent on the recipient’s understanding of the intention of the issuer. As such, the notice should be clear and unequivocal. It should explicitly state out its objective; whether to terminate the tenancy or to alter the terms of the tenancy. This can be done by striking through the undesired part and retaining the intended objective.

16. Where a tenancy notice does not disclose the intent, the recipient is not in a position to respond to it either agreeing with the suggestions or rejecting the same.

17. It is my respectful finding that the tenancy notice issued on October 27, 2021 does not explicitly indicate the reason and does not prompt the tenant to act in any specified way.

G. Orders 18. The upshot of this finding is that; i.The preliminary objection dated May 19, 2022 is hereby allowed.

ii.The landlord is at liberty to issue a fresh termination notice in clear and unequivocal terms.

iii.Tenants reference dated December 14, 2021 is compromised on similar terms.

JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 11TH DAY OF NOVEMBER,2022 IN THE ABSENCE OF PARTIES.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL