Mire v Tawakal Money Transfer Ltd & 56 others [2022] KEBPRT 867 (KLR)

Mire v Tawakal Money Transfer Ltd & 56 others (Tribunal Case E936 of 2022) [2022] KEBPRT 867 (KLR) (20 December 2022) (Ruling)

Neutral citation: [2022] KEBPRT 867 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E936 of 2022

Andrew Muma, Vice Chair

December 20, 2022

Between

Faduma Mohammed Mire

Applicant

and

Tawakal Money Transfer Ltd & 56 others

Respondent

Ruling

A. Parties and Representatives 1. The applicant Faduma Mohammed is the landlord and had rented out space on the suit property known as Homeland Apartments located on LR No 36/VII/288 for the business. (hereinafter known as the ‘landlady’)

2. The firm of Orlando & Company Advocates represent the landlord/applicant in this matter.

3. The respondent Tawakal Money Transfer is the tenant and rented space for the business in the suit property. (hereinafter the ‘tenant’)

4. The firm of Mahmoud Gitau Jillo Advocates represent the respondents in this matter.

B. The Dispute Background 5. The landlord issued the tenant with a notice to terminate tenancy dated June 2, 2022 which was to take effect on August 6, 2022. The notice was issued on the grounds that the tenant’s had defaulted in paying rent since March 2022. In response the tenant filed an application dated November 17, 2022. The tenants were opposing the notice issued by the landlord.

C. The Landlord’s Claim 6. The landlord filed a reference dated October 14, 2022 seeking to enforce the validity of a notice to terminate tenancy issued to the tenants.

D. The Tenant’s Claim 7. The tenant’s have filed an application dated July 28, 2022and November 17, 2022 seeking to oppose the notices issued by the landlord

E. List of Issues for Determination 8. It is the contention of this tribunal that the issues raised for determination are as follows;I.Whether the termination of the tenancy by the landlord was valid?

F. Analysis and Findings Whether the termination notice issued by the landlord was valid? 9. Section 4(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act chapter 301 laws of Kenya provides that;4(2)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

10. The above provision requires that before the landlord can terminate or alter the terms of a controlled tenancy, they must issue a notice of not less than two months to the tenant.

11. In the present case the landlord has averred that they issued the tenants with a notice on June 2, 2022 which was to take effect on August 6, 2022. As per the provisions of cap 301 above, the said notice can be deemed to be valid on the grounds that it satisfies the required period of two months.

12. As per the provisions of cap 301 section 4(5) the tenants are required to inform the landlord of their intention or lack thereof to comply with the notice. The tenant’s have not done so since they have not filed any references. As it stands the notice is unopposed. They have additionally not filed an application requesting for an extension of time within which to file the reference.

13. I have also observed that the tenants have raised an issue with regards to the legitimacy of the landlady being the owner of the premises. The landlady has provided before this tribunal a certificate of confirmation of grant and the letters of administration dated June 22, 2021 and October 30, 2021 respectively.

14. The two documents confirm that the suit property which initially belonged to Abdulkadir Musse devolve to Faduma Mohammed Mire, the landlady herein. The tribunal takes cognizance of the existing succession matter where the grant of probate has been contested. Seeing as the same is still ongoing in court, the tribunal cannot interfere with the current status being that the grant was issued to the landlady, Fadima Mohammed.

15. In light of the foregoing and based on the validity of the notice tenant should hand over vacant possession of the premises back to the landlord

G. Ordersa.The upshot is that the landlord’s references dated October 14, 2022 is hereby upheld in the following terms.b.The notices issued by the landlord dated June 2, 2022 are hereby declared valid.c.The tenant shall grant the landlord vacant possession of the premises failure to which the landlord is at liberty to break in with the assistance of the OCS Eastleigh North Police Station.d.Each party shall bear their own costs.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 20TH DAY OF DECEMBER 2022 IN THE PRESENCE OF ETEMERE FOR THE TENANT AND ORLANDO FOR THE LANDLORD.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL