Nguhu v Charles Kariithi t/a Ngwataniro Ya Ngutu Traders [2022] KEBPRT 821 (KLR)

Nguhu v Charles Kariithi t/a Ngwataniro Ya Ngutu Traders (Tribunal Case E104 of 2022) [2022] KEBPRT 821 (KLR) (Civ) (4 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 821 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E104 of 2022

Andrew Muma, Vice Chair

November 4, 2022

Between

Mary Wangechi Nguhu

Tenant

and

Charles Kariithi t/a Ngwataniro Ya Ngutu Traders

Landlord

Ruling

A. Parties and Representatives 1. The applicant Mary Wangechi Nguhu is the tenant and had rented space on the suit property at Kariaini town for the business. (hereinafter known as the ‘tenant’)

2. The tenant appears in person in this matter.

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

4. The landlord appears in person in this matter.

B. The Dispute Background 5. The Landlord issued the tenant with a notice to terminate tenancy dated July 5, 2022 that was to take effect on October 1, 2022. The notice was served on the grounds that the tenant failed to pay rent and that the landlord intended to use the premises upon acquiring vacant possession.

6. The tenant has filed a reference and a notice of motion application dated August 25, 2022 under section 12 (4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act cap 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 as well as that the Notice by the Landlord be declared invalid 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 August 25, 2022 to which he obtained interim reliefs.

8. The tenant has also filed a further affidavit dated October 3, 2022.

D. The Landlord’s Claim 9. The landlord has filed a Replying Affidavit dated September 27, 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 Notice to Terminate Tenancy issued by the Landlord is valid?

F. Analysis and Findings Whether the Notice to Terminate Tenancy issued by the Landlord is valid? 11. Termination of a controlled tenancy is provided for under section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. The section provides that;“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 provisions of this Act”

12. Section 4 (2) and (4) of cap 301provide that;4(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.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, as shall be specified therein

13. In the present case the landlord issued the tenant with a notice to terminate tenancy dated July 5, 2022 and the same was to take effect on October 1, 2022. The notice was based on the grounds that the tenant was in arrears for 15 months and that the landlord intended to take possession and use the premises. Based on the above provisions of cap 301 the notice meets the two months hence would be deemed valid.

14. The landlord has however not provided proof before this tribunal in form of approved plans as well as his source of funds for his intention to use the premises upon being granted vacant possession. As such this tribunal cannot rightfully require the Tenant to vacate until such evidence is availed.

15. However on the question of arrears, the landlord alleges that the tenant has failed to pay rent for 15 months at the rate of Kshs 12,500 per month as well as electricity and Land rates. The tenant on the other hand has averred that they are not in arears.

16. The tribunal takes note of the fact that the tenant has annexed receipts and Mpesa statements in their supporting affidavit in an attempt to prove payment of rent. The said payments are for the months of March, June, July and August and show payment of varying small amounts Kshs 3,000, 3,000, 1500, 500, 8,000 etc to different persons which shows bad faith on the tenant as reconciliation has been made difficult and deliberately so to the landlord and or its members. This action is less than candid on the part of the tenant and on this ground the landlord succeeds.

17. In light of the foregoing, this tribunal finds that the notices issued by the landlord are valid as they adhere to the requirements of cap 301, they gave a two months period and sufficient reasons for the termination.

G. Ordersa.The upshot is that the tenant’s reference and application dated August 25, 2022 are hereby dismissed.b.The landlord’s notice dated July 5, 2022 is declared valid.c.The landlord is at liberty to take back vacant possession of the premises on November 30, 2022. d.This ruling shall apply to case No E122 as well.e.Each party shall bear their own costs.

JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A MUMA THIS 4TH DAY OF NOVEMBER, 2022. In the presence of Charles Mwangi, landlord, in person, and Mary Wangechi, tenant, in person.HON A MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL