Mungai v Phalice Holdings Limited & another [2025] KEBPRT 307 (KLR)

Mungai v Phalice Holdings Limited & another (Tribunal Case E106 of 2025) [2025] KEBPRT 307 (KLR) (23 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 307 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E106 of 2025

N Wahome, Chair & Joyce Murigi, Member

May 23, 2025

Between

Nahashon Ng’ang’a Mungai

Tenant

and

Phalice Holdings Limited

1st Respondent

James Kiambuthi

2nd Respondent

Ruling

1. The Tenant/Applicant triggered these proceedings by the reference dated the 28/1/2025 which is anchored on Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301) which we hereafter refer to as “the Act”. The main grievance by the Tenant is that:-.“The Respondents through their Agents, employees and/or servants has been harassing, intimidating and purporting to terminate the Tenancy between Tenant and Landlady feigning that the Tenant has violated terms of the lease which is false and illegal”.

2. The reference was accompanied by a notice of motion application of the even date which basically sought for orders of temporary injunction to restrain the Respondents from evicting, harassing, increasing rent and/or interfering with the Tenants quiet possession of the demised premises otherwise better known as House No. 12 and 13 at Ruiru Kairu Estate pending the hearing and determination of both the application and suit herein.

3. The Tenant also sought to have any ensuing orders enforced by the OCS Theta Police Station and or in-charge area police officer. He also asked the court to provide the costs of the application.

4. Thereafter, the Tenant filed the supplementary affidavit dated 9/4/2025 and the submissions dated 9/4/2025. The case for the Tenant is that:-i.He was meeting all his cardinal obligations as a tenant including payment of rent as the same fell due.ii.The 2nd Respondent who is a director of the 1st Respondent issued him with a notice to terminate tenancy dated 28/10/2024 which was unlawful.iii.The 2nd Respondent has been interfering with his quiet possession of the demised premises including arbitrary disconnection of power.iv.He has sought for the intervention of the area chief but the 2nd Respondent is intent on evicting him.v.The Respondents had no locus to issue him with the notice of termination as they were not the owners of the demised premises.vi.He shares the building with 8 others who also run bars/alcohol outlets and the Respondents had no issue with the others.vii.He has never been issued with any sanctions by the government agencies that regulate sale of alcohol.viii.The 2nd Respondent is merely envious of his business.ix.He had made a case satisfying the requirements as set in the case of Giella – vs- Cassman Brown (1973) EA and thus should be granted the orders sought.

5. On their part, the Respondents answered the Tenant’s case by their Replying Affidavit sworn by the 2nd Respondent Mr. James Kiambuthi on the 14/2/2024. They also rendered their submissions which are dated the 23/4/2025. The case for the Respondents is that:-i.The 1st Respondent is the registered owner of Title No. Ruiru/Ruiru East Block 2/4768 in which the demised premises are comprised.ii.There has been a lot of disagreements between the Tenant and the Respondents as he was un-co-operative and rude to them.iii.The Tenant does not observe hygiene in running his bar business and poses a health hazard to other Tenants.iv.They have tried to prevail on the Tenant to operate with decorum and within the law but all in vain.v.The Tenant is using strangers to threaten the Respondents.vi.There are other about 40 Tenants at the premises and who are affected by the conduct of the Tenant.vii.The notice issued to the Tenant is valid and lawful and that the same should be upheld.viii.The Tenant’s application lacks in any merit and the same should be dismissed.

6. Having perused the parties pleadings, evidence attached and their respective submissions, in our view, the issues that arise for determination are the following:-i.Whether the landlord’s notice of termination of Tenancy dated 28/10/2024 is lawful.ii.Whether the Tenant’s Application dated 28/1/2025 has merit.iii.Who should bear the costs of these proceedings.

7. Before we endevour to determine the identified issues, it is our view that a resolution of this application shall by inference have resolved the reference herein. We shall therefore make an order to that effect.

8. On whether the landlord’s notice dated 28/10/2024 is lawful, we first wish to confirm from the averments by both parties under oath that indeed there exists a relationship of a Tenant and Landlord between the parties herein. The Tenant cannot be allowed to approbate and reprobate on the issue at each turn of the proceedings. There is no dispute that the Tenant pays rent to the 1st Respondent and whereof the 2nd Respondent is said to be a director.

9. For any credence to be attached to the Tenant’s assertion that the 2nd Respondent was a mere busy body, he needed to disapprove that the 2nd Respondent was not a director of the 1st Respondent which is the Owner of the demised premises – Annexture “JK-1”,. This is a statutory duty that must be ascertained or proved.

10. Section 7 of the Evidence Act provides that:-“Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists.Further Section 109 of the same Act provides that:-“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person”.

11. The Tenant has failed in discharging that fundamental obligation and it is our determination that a landlord and Tenant relationship do subsist between the parties herein. It is also our finding that this court has the jurisdiction under Sections 2(1) and 12 of the Act to supritend over all the matters in issue.

12. We are actually surprised that the Tenant who is the one who triggered these proceedings can even entertain such thoughts as above. This is because, the absence of a landlord and Tenant relationship would oust the jurisdiction of this court to preside over the matters at hand.

13. As that may, we have scrutinized the impugned notice of termination dated 28/11/2024. We highly doubt that the same can be recognized by the law and in particular Cap. 301 Section 4(2) thereof provides that:-“A Landlord who wishes to terminate 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”.

14. The prescribed form alluded to herein above is provided for by Regulation 4 (1) of the Regulations to this Act and which 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”.

15. Further Section 7 of the Act has a mandatory requirement which is that the Landlord must provide a ground or grounds for such termination.The same states that:-“Where under Section 4 of this Act served a notice of termination of a controlled tenancy on the Tenant, the grounds on which the Landlord seeks to terminate such tenancy may be such of the following grounds as are stated in the aforesaid notice”.

16. It is plain that the impugned notice by the letter dated 28/10/2024 is not in the prescribed form dictated on by Section 4(2) of the Act and Regulation 4(1) of the Regulations to the Act. The landlord did not also provide the lease whose terms are alleged to have been violated by the Tenant. We are therefore not convinced that the impugned notice can be cured by the application of Section 72 of the interpretation and general Clauses Act (Cap. 2). The same has fallen short of meeting very critical and fundamental thresholds as set by the law.

17. In taking this position, we are also guided by the Locus Classicus case of Fredrick Mutua Mulinge T/A Kitui Uniform – vs- Kitui Teachers Housing Co-operative Society Ltd (2017) eKLR here the court 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 Tenant 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 1/7/2024 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”.

18. To sign off on this issue, we refer to another leading case in this are of a jurisprudence which is the case of Manaver N. Alibhai t/a Diani Boutique – vs- South Coast Fitness and Sports Centre Ltd Civil Appeal No. 203 of 1994 where the court stated that:-“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled Tenancy shall not terminate or be terminated, and no term or condition or right or service enjoyed by the Tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the Tenant. The notice must also specify the ground upon which termination is sought. The prescribed notice in form A also requires the landlord to ask the Tenant to notify him in writing whether or not the Tenant agrees to comply with the notice”.

19. The Respondents have asserted that the reference and application herein having been filed outside 60 days, that the same were null and void abinitio and of no effect. We disagree. A nullity in law cannot result into anything indeed the Tenant had no obligation to take any steps to address the otherwise defective notice. In the said case of Fredrick Mutua Mulinge T/A Kitui Uniform Supra. The court held that:“In view of the foregoing findings, the appellants reference dated 31/7/2024 which was filed under Section 12(4) of the Act and the notice of motion of the same date were properly before the court and should have been allowed by the Tribunal. The appellant was under no obligation to respond to a defective notice. The tribunal’s finding that the said defective notice took effect under section 10 of the Act owing to the Appellant’s failure to respond to the same was in the circumstances erroneous”.

20. We have therefore concluded that the impugned notice of termination dated 28/10/2024 is unlawful and of no legal purpose nor effect and proceed to dismiss the same.

21. The 2nd issue is on whether the Application dated 28/1/2025 has merit. In our view, the impugned notice dated 28/10/2024 was an infringement of the fundamental rights of the Tenant under Section 4(2) and 7(1) of the Act and Regulations 4(1) of the Regulations to the Act.

22. It would then follow that the Tenant had the legitimacy to seek for the intervention of this court against the glaring breach of the Act. We would therefore coupled with the findings on the notice of termination dated 28/10/2024 find merit in the Tenant’s Application and would allow the same.

23. On costs, we follow the conventional wisdom of Section 12(1) (k) of the Act and award costs to the Tenant who is the successful party herein.

24. In the final analysis, the orders that commend to us to make are the following:-i.That the reference and Application herein both dated 28/1/2025 are allowed in terms that the Tenant shall be allowed complete quiet possession of the demised premises comprised in House Nos 12 and 13 within Ruiru Ha Kairu Estate.ii.That the Respondents shall pay to the Tenant costs assessed at Kshs.25,000/- to be offset from the rent payable.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF MAY, 2025. HON. NDEGWA WAHOME, MBS, - PANEL CHAIRPERSONHON. JOYCE MURIGI, - MEMBER,BUSINESS PREMISES RENT TRIBUNAL.Ruling delivered in the presence of Mr. Wachira holding brief for Mr. Kanyi for the Tenant/Applicant and M/S Njeru for the Landlord/Respondents.HON. NDEGWA WAHOME, MBS, - PANEL CHAIRPERSONHON. JOYCE MURIGI, - MEMBER,BUSINESS PREMISES RENT TRIBUNAL.