Omari v Omwanza [2022] KEBPRT 752 (KLR)

Omari v Omwanza (Tribunal Case E024 of 2022) [2022] KEBPRT 752 (KLR) (14 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 752 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E024 of 2022

Cyprian Mugambi Nguthari, Chair

September 14, 2022

Between

Kodheck Omari

Tenant

and

Zablon Omwanza

Landlord

Ruling

1. The tenant’s/applicant’s notice of motion dated May 16, 2022 seeks an order that the landlord herein be restrained from evicting the tenant and/or disturbing the business of the tenant until the determination of the reference filed herein.

2. The application is supported by the affidavit of Kodhek Onyari and opposed by the replying affidavit sworn by the landlord Zablon Omwanza.

The Tenant’s Depositions; 3. The tenant’s affidavit may be summarized as follows;a.That he has been a tenant of the landlord herein for approximately twenty years paying a monthly rent of Kshs 7,000/-.b.That the landlord intends to carry out his own business in the suit premises and has hatched a plan to use the local market administration to push the tenant out.c.That the landlord has issued a notice dated April 21, 2022 demanding that the tenant vacates the premises on grounds that he wants to renovate the premises.d.That the notice issued by the landlord is not issued in good faith as the landlord wants the premises for his own business.e.That the tenant’s wife who operates the business at the suit premises has taken out a loan of Kshs 400,000/- to finance the business and the loan repayment is ongoing.

The Landlord’s/Respondent’s Depositions 4. The landlord’s replying affidavit may be summarized as followsa.That it is true the applicant is his tenant and they have not had any problems.b.That due to his age, he has shared out his properties to his children.c.That one of his children whose share of land falls on the suit land has requested to have the premises renovated.d.That on November 1, 2021, the respondent requested the tenant to vacate to allow for renovations of the premises.e.That the tenant complained to the market committee of Ikonge Market which committee resolved that the tenant be given six months to vacate the premises, the tenant refused to sign an agreement to that effect as a result of which the respondent issued a notice to vacate.f.That the respondent is not in a position to run any business.g.That the law allows the respondent to issue the notice to vacate.h.That the application is incompetent and ought to be struck out.

Parties’ Submissions 5. Both parties have filed their submissions in support of their respective positions, I have considered the said submissions in this ruling.

Analysis and Determination 6. The only issue that arises for determination in this application is whether the applicant is entitled to the orders he has sought therein.

7. The landlord’s notice to terminate tenancy is the one dated April 21, 2022. The reasons for termination given in the said notice are that the landlord wants to renovate the premises by constructing an extra floor which cannot be done while the tenant is still in occupation.

8. The tenant being disagreeable with the notice to terminate his tenancy has filed a reference under section 6 of cap 301. Section 6 of cap 301 provides as follows;“A receiving party who wishes to oppose a tenancy notice and who has notified the requesting party under section 4(5) of this 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 until and subject to the determination of the reference by the tribunal.”

9. The tenant herein has sought a restraining order against the landlord pending the hearing of the reference. The reference herein has not been heard and it is clear from the above provision of cap 301 that the notice issued by the landlord herein is of no effect until and subject to the determination of the reference.

10. In the circumstances, I allow the tenant’s application in terms of prayer 3 and 4 thereof and further order that the reference be fixed for hearing.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 14TH DAY OF SEPTEMBER, 2022HON. CYPRIAN MUGAMBI NGUTHARICHAIRMANBUSINESS PREMISES RENT TRIBUNALIn the presence of Mr Ombichi for the Landlord and in the absence of the Tenant and counsel.