Ngugi v Munguchi [2022] KEBPRT 1091 (KLR)

Ngugi v Munguchi (Tribunal Case E644 of 2022) [2022] KEBPRT 1091 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 1091 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E644 of 2022

CN Mugambi, Chair

November 3, 2022

Between

Evanson Wainaina Ngugi

Tenant

and

Peter Ndirangu Munguchi

Landlord

Ruling

1. The tenant/Applicant’s notice of motion dated 15. 7.2022 seeks orders restraining the landlord/Respondent from evicting the Applicant from the premises on plot No. 3474 Riruta Dagoreti, wherein the tenant carries out a butchery business until this matter is heard in full.

2. The application is supported by the affidavit of Evanson Wainaina Ngugi wherein it has been stated that in 2013, the tenant entered into an oral agreement with the Respondent to take up space in the suit premises.

3. The tenant/Applicant has further stated in his affidavit that during the COVID-19 season, he renovated the suit premises at a cost of Kshs. 750,000/= and also sublet part of the premises to one Mr. Ouma Olando who sold alcohol in his portion of the sublet premises.

4. The tenant states in his affidavit that he was shocked to receive a notice to vacate the premises by 1. 8.2022 which he is opposed to as he is sure that the landlord does not wish to take up the premises for his own use but it is the tenant’s caretaker who is after the business of the tenant.

5. The tenant has also stated that there are very many businesses in the suit premises and it is questionable why the landlord has only targeted the tenant/Applicant’s business.

6. The landlord has opposed the application by his replying affidavit sworn on 12. 9.2022, where he has deponed that the Reference filed by the tenant is improper as the same has not been paid for.

7. The landlord admits in his affidavit that he inherited the tenant from the previous owner of the suit premises.

8. The landlord also states that he did not give any consent to the tenant to renovate the premises and the tenant is therefore not entitled to any compensation nor is he entitled to stay any further in the suit premises as the landlord has already served him with a notice to vacate.

9. The landlord states that the Applicant is a rent defaulter who has even gone further and introduced a sub tenant in the suit premises and from whom he was collecting rent.

Issues for determination 10. The parties in this suit requested that the application be determined on the basis of the affidavits on record. The only issue that arises for determination is whether the tenant is entitled to the prayers sought in his application dated 15. 7.2022.

11. The genesis of these proceedings is the landlord’s notice to terminate tenancy dated 17. 5.2022. The same show its effective date as 1. 8.2022 and is issued pursuant to the provisions of Section 4(2) of Cap 301 of the Laws of Kenya. The tenant did not agree with the said notice and proceeded to file a reference to the tribunal as required under Section 6 of Cap 301. That reference has not been heard and the orders herein have been sought pending the hearing of the said reference.

12. It is common ground that there does not exist a written tenancy agreement between the parties herein and the tenancy between them is therefore a controlled tenancy as defined under Section 2 of Cap 301.

13. Once the tenant filed the reference to the Tribunal, the notice became of no effect until and subject to the determination of the reference by the Tribunal. In this regard, Section 6(1) Cap 301 provides as follows:-“6(1)A receiving party who wishes to oppose a tenancy notice and who has notified the requesting party under Section 4(5) of the Act that he does not agree to comply with the tenancy notice may before the date upon which such notice is to take effect, refer the matter to a Tribunal whereupon such notice SHALL BE OF NO EFFECT. (Under ... Mine) until and subject to the determination of the reference by the Tribunal.”

14. The tenant in this matter is in possession, occupation and use of the suit premises. He has received the notice to terminate his tenancy and in opposition thereto, he has filed a reference to the Tribunal. Consequently, it behoves the Tribunal to maintain the status quo till the reference is heard and determined.

15. In the circumstances, I find that the Tenant’s application is merited and I allow the same by granting prayer 3 and 4 hereof. The parties will fix the reference for hearing.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 3RD DAY OF NOVEMBER 2022. HON. CYPRIAN MUGAMBICHAIRPERSON03. 11. 2022Delivered in the presence of Ms. Ngetho for the tenant and in the presence of Mr. Peter Ndirangu – the landlord