Muchemi & 3 others v Kirori [2022] KEBPRT 886 (KLR)

Muchemi & 3 others v Kirori (Tribunal Case E012, E013, E014 & E015 of 2022 (Consolidated)) [2022] KEBPRT 886 (KLR) (Civ) (22 December 2022) (Ruling)

Neutral citation: [2022] KEBPRT 886 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E012, E013, E014 & E015 of 2022 (Consolidated)

Andrew Muma, Vice Chair

December 22, 2022

Between

Joshua Mahugu Muchemi

1st Tenant

Stephen Gachuri

2nd Tenant

James Macharia Theuri

3rd Tenant

Wilson Muchemi

4th Tenant

and

Stanley Kimondo Kirori

Landlord

Ruling

A. Parties and Their Representatives 1. The tenants herein are all tenants of rented business spaces situate at property known as Aguthi/Gatitu/1697 in Ruring’u, Nyeri along the Nyeri Karatina Road. (hereinafter the “suit premises”).

2. The firm of M/S Magua and Mbatha Advocates represents the 1st Tenant herein. The Rest of the Tenants have no firms on record for them.

3. The Landlord/Respondent is the owner of the suit premises by virtue of being the administrator of the Estate of the registered proprietor who is now deceased.

4. The Firm of Mindo and Company Advocates represents the Landlord/Respondent in this matter.

B. The Dispute Background 5. The Landlord issued Notices to Terminate the Tenancy or Alter the Terms of Tenancy dated December 21, 2021 to all the Tenants herein.

6. In response to the Notices, all the Tenant’s herein filed references to the Tribunal all dated February 3, 2022 opposing the Landlord’s Notices to Terminate or Alter the Terms of Tenancy dated December 21, 2021.

7. All the files were consolidated by an Order of this Tribunal dated June 29, 2022. This Tribunal also ordered that the Respondent gives reasons and documents for eviction in 21 days and status quo be maintained in the meantime.

8. The Landlord filed Reasons by the Landlord for Seeking to Terminate Tenancy dated July 15, 2022.

9. Those are the only documents in the Tribunals record.

C. Jurisdiction 10. The jurisdiction of this Tribunal is not in dispute.

D. The Tenants’/Applicants’ Claim 11. The Tenants all filed references to this Tribunal dated 3rd February 2022 opposing the Landlord’s Notices to Terminate or Alter the Terms of Tenancy dated December 21, 2021.

E. The Landlord’s Claim 12. The Landlord issued a Notices of Termination of Tenancy dated December 21, 2021 on grounds that Landlord intended to occupy the premises for a period of not less than one year for the purpose of carrying on business. These notices were challenged by the Tenants herein through references to this Tribunal.

13. The Landlord’s response to the references is contained in the Reasons by the Landlord for Seeking to Terminate Tenancy dated July 15, 2022 where the Landlord contends that he intends to terminate the tenancy because the beneficiaries of the Estate he is administering want to take possession of the premises and develop the same since none of them is gainfully employed.

F. Issues for Determination 14. The issue raised for determination before this Tribunal is whether the Notice to Terminate Tenancy dated December 21, 2021 was valid.

G. Analysis and Determination 15. At the outset Section 4 of the Landlord had issued the Notice to terminate the tenancy pursuant to Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. The Provisions of Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act are as follows:4. Termination of, and alteration of terms and conditions in, controlled tenancy1. 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 following provisions of this Act.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.3. A tenant who wishes to obtain a reassessment of the rent of a controlled tenancy or the alteration of any term or condition in, or of any right or service enjoyed by him under, such a tenancy, shall give notice in that behalf to the landlord in the prescribed form.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:…5. 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.6. A tenancy notice may be given to the receiving party by delivering it to him personally, or to an adult member of his family, or to any other servant residing within or employed in the premises concerned, or to his employer, or by sending it by prepaid registered post to his last known address, and any such notice shall be deemed to have been given on the date on which it was so delivered, or on the date of the postal receipt given by a person receiving the letter from the postal authorities, as the case may be.

16. In the present matter, the Landlord issued the Notice of Termination of Tenancy in the prescribed form (form A (R4) Amended). The Notice was dated December 21, 2021 and it was to take effect from March 1, 2022. Therefore as for the conditions in Section 4(2 & 4) were complied with by the Landlord.

17. The reason given by the Landlord in the Notice for termination of Tenancy were that the Landlord intends to occupy the premises for a period of not less than one year for the purpose of carrying on business.

18. The grounds for seeking termination are further expressed in the Reasons by the Landlord for Seeking Termination of the Tenancy dated July 15, 2022 where the Landlords avers that the beneficiaries of the Estate he is administering want to take possession of the premises and develop the same since none of them is gainfully employed.

19. As provided for in section 4(5) of cap 301 quoted above, a landlord has to specify the grounds upon which he seeks the termination. Further, the reasons have to be justified.

20. In my analysis of the documents on record I am of the view that indeed the reasons offered by the Landlord for seeking termination of the Tenancy are indeed justified. Further, considering that all the other requirements of a Notice to Terminate Tenancy have been complied with I find that the Notice was valid.

H. Orders 21. Having made the analysis above. This Tribunal makes the following orders:i.The Tenant’s reference dated November 18, 2021 is dismissed on the basis that the Landlord’s Notice to Terminate the Tenancy was valid.ii.The Tenants do vacate in 30 days from today and hand over vacant possession to the Landlord.iii.Each Party to bear its own costs.

JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A MUMA THIS DECEMBER 22, 2022 IN THE PRESENCE OF MAGUA FOR THE TENANT AND MINDO FOR THE LANDLORD.HON A MUMAVICE CHAIR__BUSINESS PREMISES RENT TRIBUNAL