Nzavi v Faza Properties Limited & another [2022] KEBPRT 820 (KLR)

Nzavi v Faza Properties Limited & another (Tribunal Case E399 of 2022) [2022] KEBPRT 820 (KLR) (11 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 820 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E399 of 2022

Andrew Muma, Vice Chair

November 11, 2022

Between

Stephen Mulu Nzavi

Applicant

and

Faza Properties Limited

1st Respondent

Estate of Oliver Mwauda

2nd Respondent

Ruling

Parties and their Representatives 1. The applicant/landlord Stephen Mulu Nzavi (hereinafter referred to as the “landlord”) is the owner of the premises rented out to the tenant.

2. The firm of Gitonga Kalawa & Company Advocates represents the landlord in this matter.

3. The 1st respondent/tenant, Faza Properties Limited (hereinafter referred to as the “tenant”) is a business run by the estate of the late Oliver Mwauda, the 2nd respondent herein. The said business has been on the premises of the landlord the subject of this suit pursuant to an oral tenancy agreement.

4. The firm of Munyalo Muli & Company Advocates represents the landlord in this matter.

The Dispute Background 5. On May 9, 2022, the landlord filed a reference in this tribunal contending that the tenant has failed and or neglected to maintain the premises which are in bad state, has failed to pay rent when due and has also declined to allow him use the premises for repair and renovation. The landlord therefore sought to evict the tenants from the demised premises based on the aforementioned grounds.

6. He also filed a notice of motion application accompanied by a supporting affidavit sworn on May 8, 2022. The applicant sought this honurable tribunal to certify the said application urgent and issue an eviction order against the tenants. The OCS Komarock police station was to ensure compliance with these orders.

7. The tenant filed their grounds of opposition in the matter vide their notice of grounds of opposition dated June 2, 2022. In the said response, the tenants contended that the application is premature, misconceived and an abuse of the court process as it offends the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act cap 301 laws of Kenya.

8. The landlord responded to the tenant’s ground of opposition above, through a replying affidavit dated June 3, 2022. The landlord, in principle, urged his case and reiterated the position he took in the notice of motion application. This was again fortified on a supplementary affidavit sworn on July 1, 2022.

9. The application was then canvassed by way of written submissions. Both parties have filed their respective written submissions in this matter.

10. The application coming up for ruling is the tenant’s application and reference filed herein in this matter.

Claim and Defence 11. The landlord contends that the tenant has failed and/or neglected to maintain the premises which are in bad state, has failed to pay rent when due and has also declined to allow him access the premises for repair and renovation.

12. Due to the foregoing reasons, the landlord served the tenant with a notice of termination of tenancy on February 2022 effective on May 1, 2022. This notice, the landlord argued, was ignored by the tenants.

13. Upon the expiry of the above-mentioned notice, the landlord sought the intervention of this tribunal in order to evict the tenants and render vacant possession of the premises to the landlord. This position is well put forward in the landlord’ submissions dated July 7, 2022.

14. The tenant in reply, primarily argues that the said application is premature, misconceived and an abuse of the court process as the same offends the express provision of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act cap 301.

15. The tenant has gone ahead to fault the application as lacking a date, that the prayer for termination has not been sought, and as such, eviction orders cannot ensue. The tenant therefore urged this court to dismiss the undated application. He also informed the court to take note that the landlord has refused to accept rent.

Jurisdiction 16. The jurisdiction of the honourable tribunal is not disputed by the parties.

List of Issues for Determination 17. From the facts of the case, the tribunal shall proceed to distill the issues discussed by the parties and their counsels as below:a.Whether the notice of termination of tenancy dated February 8, 2022 is valid.b.Whether the applicant is entitled to the reliefs sought.

Analysis and Findings Whether the notice of termination of tenancy dated 8th February 2022 is valid. 18. Section 4(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act chapter 301 provides that;“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 two months after the date of receipt, whether or not he agrees with the notice."

19. Further, section 7 (f) of the same Act provides the grounds upon which a landlord may seek to terminate tenancy;“That on the termination of tenancy the landlord intends to demolish or reconstruct the premises comprised in the tenancy, or substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises”

20. The applicant argues that the notice of termination of tenancy that he served conformed with the foregoing provisions of the law. These allegations have been supported by the fact that the said notice have bee attached herein, and an affidavit of service has been attached too. The respondent has not controverted the applicant’s contention.

21. I have looked keenly at the notice of termination of tenancy dated February 8, 2022. The notice was to take effect from May 1, 2022. This is more than two months later. Section 4(4) of the Landlord and Tenants (Shops, Hotels and Catering Establishment) Actcap 301 of the laws of Kenya provides thus;“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:Provided thati.where notice is given of the termination of a controlled tenancy, the date of termination shall not be earlier than the earliest date on which, but for the provisions of this Act, the tenancy would have, or could have been, terminated;ii.where the terms and conditions of a controlled tenancy provide for a period of notice exceeding two months, that period shall be substituted for the said period of two months after the receipt of the tenancy notice;iii.the parties to the tenancy may agree in writing to any lesser period of notice"

22. Further, section 4(5) of the Act provides thus;“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."

23. A cursory look at the notice also discloses the reasons for the intended termination. The landlord alleges that the premises were not in good conditions, he therefore wanted vacant possession in order to renovate the demised premises. Save for technicalities, the respondents have not controverted any of these assertions. I am therefore inclined to arrive at an inescapable conclusion that the applicant’s application on this issue is merited. Accordingly, the termination notice took effect once the time in the said notice expired. No leave has been sought to file a reference out of time and or to deem reference filed to be duly filed on time.

24. Article 159 (2) (d) provides that, “In exercising judicial authority, the courts and tribunals shall be guided by the following principles- justice shall be administered without undue regard to procedural technicalities." I will be guided by this article on the issue of dates as the supporting affidavit to the application has a date when it was sworn and deem the application good.

Whether the applicant is entitled to the reliefs sought 25. Having found that the landlord complied with the provisions of the statutes on termination of tenancies in is entirely, in addition the landlord has not been receiving rent since July 2022 after the time in the termination notice expired compounds the fact that there is no longer a tenancy relationship between the landlord and the tenant herein.

OrderFor the reasons given above I order as follows that;a.The upshot is that the landlords reference and application dated May 9, 2022 is allowed in the following terms: -b.An order of eviction does and is hereby issued against the 1st and 2nd respondents from the suit premises Nairobi/Block129/Komarock the subject of this matter.c.The tenants to render vacant possession to the landlord immediately.d.That the tenants to pay the landlord all rent arrears/mesne profits from July 2022 at the prevailing rates.e.Each party to bear its own costs.

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 11TH DAY OF NOVEMBER 2022 IN THE ABSENCE OF ALL PARTIES.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL