Ondieki v Onyango [2024] KEBPRT 126 (KLR)

Ondieki v Onyango (Tribunal Case E632 of 2023) [2024] KEBPRT 126 (KLR) (22 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 126 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E632 of 2023

P May, Member

January 22, 2024

Between

Beatrice Kwamboka Ondieki

Tenant

and

Dinah Onyango

Landlord

Ruling

1. The tenant commenced the present proceedings by filing the reference dated 22nd June, 2023 seeking the Tribunal’s intervention against the harassment and illegal threats made by the landlord. Contemporaneous with the reference, the tenant filed an application brought by way of certificate seeking orders of temporary injunction against the landlord.

2. The application was opposed by the landlord through the replying affidavit sworn on 22nd September, 2023. The parties elected to canvass the application by way of written submissions. As at the time of drafting this ruling, the tenant had not filed her submissions. Nonetheless, I will proceed to make a determination based on the evidence on record.

Summary of the tenant’s case 3. The tenant averred that at the time of filing the present proceedings she had occupied the premises for a period exceeding 9 months. It was her testimony that she had always paid rent as when it fell due. She stated that she had made payments sometimes on 21/6/2023 but the same was reversed and the landlord ordered that she vacates the demised premises.

4. The tenant averred that the landlord’s actions made her aggrieved since she had made substantial investment on the demised premises and that it was her sole source of livelihood. She accused the landlord of acting in bad faith thus craved for the intervention of the Tribunal to remedy the looming injustice.

Summary of the landlord’s case: 5. The landlord took a multi-pronged approach in opposing the application. First, the landlord stated that they never entered into any lease with the tenant. They stated that the tenant had entered into the demised premises through another tenant who had since vacated. The landlord asserted that the tenant habitually paid her rent late thus causing an inconvenience

6. The landlord admitted that they served the tenant with a one-month notice to vacate. According to the landlord, the tenant was aggrieved by the said notice and made a report to the area chief who summoned both parties and advised the landlord to extend the notice period. The landlord has urged the Tribunal to dismiss the application with costs.

Analysis 7. The submissions filed by the parties have addressed the issues of grant of temporary orders of injunction as sought by the tenant. The landlord buttressed their position on the triple requirements which were set for the grant of temporary orders of inunction in the celebrated case of Giella V Cassman Brown & Company Limited, (1973) 358 EA as follows:(i)The applicant must establish a prima facie case with a probability of success.(ii)The applicant must then demonstrate that he or she stands to suffer irreparable loss or damage which cannot be adequately compensated by an award of damages.(iii)Where there is doubt on the above, that the balance of convenience tilts in favour of the applicant.

7. In determining the above issues, it is imperative to establish whether there existed tenancy relationship between the parties herein. Even though the landlord has denied the existence of a lease, they have admitted to receiving rent and the tenant being in occupation of the demised premised. There existed therefore a tenancy in the form of controlled tenancy which as per the provisions of section 2 of Cap 301.

8. I have well established that there existed a controlled tenancy between the landlord and the tenant. Termination of the said tenancy requires issuance of a termination notice in prescribed form. It is incumbent upon this tribunal to assess that the notice issued to the tenant by the landlord is properly as prescribed in law by Cap 301. Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act states:4. Termination of, and alteration of terms and conditions in, controlled tenancy(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)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 that—(i)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.

9. The above position of the law on the issue of a termination notice is now settled. The court in Manaver N Alibhai T/A Diani Boutique v South Coast Fitness & Sports Centre Limited, Civil Appeal No 203 of 1994, stated that: -“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not 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 specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The notice must also specify the ground upon which termination is sought. The prescribed notice in Form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice.”

10. It is evident that the notice of termination of the tenancy herein was not Form A as prescribed by the Act. Further, the notice of termination of the tenancy was to take effect on 1st August, 2023, being a period short of two months as required by the Act.

11. The import of the above is that the notice issued by the landlord was null and untenable. The Tribunal cannot sanitize such an illegality. The tenant therefore succeeds. I have perused the reference. The issues raised therein have been sufficiently addressed through this ruling. I have noted from the record that the tenant had accumulated rent arrears. The tenant has a cardinal duty to pay rent as when it falls due.

12. In the end, the following orders commend itself:a.The application dated 22/6/2023 is allowed in terms of prayers 4 and 5. b.The tenant is awarded costs assessed at Kshs. 8,000 to be deducted from the rent payable.c.The tenant to clear any outstanding rent within 21 days. In default the landlord shall be at liberty to levy distress without any reference to the Tribunal.d.This ruling settles the reference dated 22/6/2023

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF JANUARY 2024. HON. PATRICIA MAY - MEMBER 22. 01. 2024Delivered in the absence of the parties.