Ndungu v Wanjohi [2022] KEBPRT 866 (KLR)

Ndungu v Wanjohi (Tribunal Case E077 of 2022) [2022] KEBPRT 866 (KLR) (Civ) (22 December 2022) (Ruling)

Neutral citation: [2022] KEBPRT 866 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E077 of 2022

Andrew Muma, Vice Chair

December 22, 2022

Between

Lazaro Mengo Ndungu

Tenant

and

Paul Gitonga Wanjohi

Respondent

Ruling

A. Parties And Representatives 1. The applicant Lazaro Mengo Ndungu is the tenant and had rented space on the suit property plot no 4/52 for the business. (hereinafter known as the ‘tenant’)

2. The firm of Karweru & Company Advocates represent the tenant/applicant in this matter.

3. The respondent Paul Gitonga Wanjohi is the landlord and rented out space for the business in the suit property to the tenant (hereinafter the “landlord”)

4. The firm of MK Kiminda & Co 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 28, 2022 which was to take effect on October 1, 2022. The notice was issued on the grounds that the tenant had interfered with the structures in the premises and had breached the terms of their agreement with the landlord.

6. In opposition to the notice tenant has filed a reference and a notice of motion application dated June 22, 2022 under section 12 (4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Actcap 301. The tenant was seeking that this honourable tribunal grants orders restraining the landlord from harassing, trespassing, evicting and interfering with the quiet possession by the tenant pending the hearing and determination of this matter.

C. The Tenant’s Claim 7. The tenant filed a reference and a notice of motion application dated June 22, 2022 and 14th June respectively to which he obtained interim reliefs.

D. The Landlord’s claim 8. The landlord has filed a replying affidavit dated July 21, 2022.

9. The landlord has filed submissions and the matter was fixed for ruling on November 23, 2022.

E. List of Issues For Determination 10. 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 lawful?

F. Analysis And Findings 11. 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

12. 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.

13. In the present case the tenant has averred that they were unlawfully evicted from the premises on June 10, 2022 whereby the landlord denied them access to the premises and demolished some of the structures in the premises. The landlord has on the other hand denied having locked the premises or demolished any of the structures in the premises.

14. The landlord has however not denied that they did attempt to terminate the tenancy by issuing the termination notice dated June 28, 2022. This was occasioned by the tenant’s breach of their agreement and the tenant’s actions of not adhering to the landlord’s requests of having the rent payments made to their advocate as evidenced by the letters dated March 11, 2022 and May 25, 2022.

15. Having perused the file I do not find any evidence showing that the tenant was actually evicted or denied access to the premises on the alleged date, June 10, 2022. The tenant has not annexed any proof to show that the landlord issued a notice evicting them or that they locked the premises.

16. This tribunal has also examined the notice to terminate tenancy dated June 28, 2022 and I find the same to be invalid. This is as a result of the fact that the notice in addition to it being issued during the subsistence of the suit, it is not specific as to whether the landlord wants to alter the tenancy or terminate the same.

17. The landlord has provided grounds for both alterations and termination which then makes their intent unclear. The landlord cannot have his cake and eat it he ought to choose whether he wants to alter terms or to terminate the tenancy all together since each limb calls for specific kind of evidence to be provided.

18. On issue costs I find that the same were for the benefit of the tenant’s business and has nothing to do with the landlord, arrears on the other hand is just mentioned by the landlord and not even a statement is attached.

G. Ordersa.The upshot is that the tenant’s reference and application dated June 22, 2022 and June 14, 2022 are hereby dismissed in the following terms.b.The landlord is at liberty to issue a fresh termination notice in clear and unequivocal terms.c.Tenant to continue paying rent each subsequent month as agreed.d.The tenant shall have costs assessed at Ksh 10,000/-

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 22ND DAY OF DECEMBER 2022 IN THE ABSENCE OF PARTIES.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL