Onyango v Kwendo & another [2024] KEBPRT 61 (KLR)

Onyango v Kwendo & another (Tribunal Case E1221 of 2023) [2024] KEBPRT 61 (KLR) (26 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 61 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1221 of 2023

Andrew Muma, Ag. Chair

January 26, 2024

Between

Eveline Awuor Onyango

Applicant

and

Agnes Kwendo

1st Respondent

Peter Senel

2nd Respondent

Ruling

A. Parties And Representatives 1. The Applicant is Eveline Awuor Onyango, the Tenant herein, who rented space for the purposes of carrying out business activities at the suit premises located at Kibera Darajani within Nairobi County (hereinafter referred to as “the Tenant”).

2. The Firm of S.B Otieno & Company Advocates is on record for the Applicant/Tenant.

3. The 1st Respondent is Agnes Kwendo, the Landlady herein, and the 2nd Respondent isPeter Senelwa, the Agent herein, of the suit premises located at Kibera Darajani within Nairobi County.

4. The 1st and 2nd Respondents both appear individually in persons.

B. The Dispute Background 5. On the 5th December of 2023, the Tenant moved this Tribunal vide a Reference and a Notice of Motion Application seeking orders restraining the Landlord from evicting her and interfering with her quiet possession of the suit premises after the Landlady issued notices to terminate tenancy dated 5th October 2023 and 19th October 2023.

6. The Tribunal having considered the Tenant’s Application, issued Orders dated 6th December, 2023. It granted prayers 1,2 and 3 of the Tenant’s Application, certifying the Application as urgent, orders restraining the Respondents from interfering with the Tenant’s quiet possession and peaceful enjoyment of the suit premises.

7. Further, the Tribunal ordered the Tenant to serve the Application in readiness for inter-partes hearing on 29th December, 2023 and thereafter file an Affidavit of Service. Additionally, Tenant was ordered by this Honourable Tribunal to continue with her rental obligations by making rent payments as and when it fell due.

8. It is this Application by the Tenant which is the subject of this ruling.

C. Tenant’s Case 9. The Tenant avers that she has been in occupation of the suit premises for a period extending 6 years. During the said period, Tenant avers that she has been paying a monthly rent of Kshs 5,000/=. The Tenant, in her Supporting Affidavit, further states that prior to acquiring possession of the suit premises, she paid a sum of Kshs 5,000/= as the rental deposit.

10. In her Supporting Affidavit, the Tenant contends that the notices issued by the Respondents requiring her to vacate the suit premises are illegal and bad in law.

11. The Tenant is aggrieved by the actions of the Respondents claiming that she has been subjected to emotional, psychological and financial torture through the intimidating acts of the Respondents intended to harass and evict the Tenant from the suit premises.

D. Landlady’s Case 12. In opposing the Tenant’s Application, the Landlady filed a Replying Affidavit dated 21st December, 2023 claiming that the Tenant has been problematic and difficult to handle while in occupation of the suit premises.

13. The Landlady notifies the Tribunal through her Replying Affidavit that the notices alluded by the Tenant in her Supporting Affidavit served as reminders of the previous notices issued to the Tenant which date back to 11th of February, 2019 as evidenced.

14. In her Replying Affidavit, the Landlady retorts that Tenant has acted maliciously and irresponsibly by exposing the suit premises to wanton damage leading to losses.

15. The Landlady also asserts that the Tenant has defaulted in her rental obligations which have accumulated to Kshs 15,000/= as at December of 2023.

E. Issues For Determination 16. After carefully considering all the documents filed and evidence adduced before this Honourable Tribunal, I am of the opinion that the following issues culminate for determination:i.Whether the tenancy relationship existing between the Applicant and the Respondents herein is a controlled tenancy;ii.Whether the notices issued by the Landlady on various dates are valid; andiii.Whether the Tenant is in rental arrears.

F. Analysis And Findings i. Whether the tenancy relationship existing between the Applicant and the Respondents herein is a controlled tenancy; 17. Section 2 of the Landlord and Tenant (Shops, Hotels & Catering Establishments) Act, Cap 301 Laws of Kenya defines a controlled tenancy as;a.which has not been reduced into writing; orb.which has been reduced into writing and which

18. The Tribunal takes cognizance of the fact that there exists no documentary proof or any agreement in writing between the Tenant and the Landlady regarding creation of any tenancy relationship.

19. However, the Tenant has been in occupation of the suit premises for a period of more than 6 years without any written agreement existing between the Tenant and the Landlady. During the said period when the Tenant was in possession of the suit premises, the Tenant has continuously paid a monthly rent of Kshs 5,000/= and the Landlady has continued to receive such payments until such a period when the Tenant allegedly defaulted in the payment of rent.

20. Further, the Landlady through the eviction notices sent to the Tenant suggests that there was a tenancy relationship which existed with the Tenant.

21. Section 119 of the Evidence Act provides:“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”

22. In light of the above, and based on the conduct between the Tenant and the Landlady, it is in my view that the tenancy relationship between the parties herein amounts to a controlled tenancy since there is no proof of any written tenancy agreement with the Tenant thereby affording the Tenant a right to be protected by this Honourable Tribunal.

ii. Whether the notices issued by the Landlady on various dates are valid and reasons valid? 23. Section 4 of the Landlord and Tenant (Shops, Hotels & Catering Establishments) CAP 301 Laws of Kenya provides for termination of a controlled tenancy. The proviso mandates that a landlord who wishes to terminate a controlled tenancy to issue a notice of termination to the tenant in the prescribed form. It thus provides as follows:“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 in the prescribed form”.

24. Further, section 4(4) of Cap301 Laws of Kenya states that:“No tenancy notice shall take effect until such date, not being less than twomonths after the receipt thereof by the receiving party, as shall be specified therein: ….”

25. In the case of Manaver N. Alibhai T/A Diani Boutique v South Coast Fitness & Sports Centre Limited, Civil Appeal No 203 of 1994 it was stated as follows;“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.”

26. Having established that there exists a controlled tenancy between the Applicant and the Respondents, the Landlady was under obligations to issue a proper notice to the Tenant in the prescribed form which is in tandem with Cap301 Laws of Kenya.

27. Regulation 4 in the Landlord and Tenant (Shops, Hotels & Catering Establishments) (Tribunal) (Forms & Procedure) Regulations, 1966 requires that:“(1)A notice under section 4(2) of the Act by a landlord shall be in Form A in the Schedule to these Regulations…”

28. In this case the Landlady issued notices on various dates to the Tenant which were in the form of a letter requiring the Tenant, the Applicant herein, to vacate the suit premises without giving proper grounds as contained under Section 7 of CAP 301 Laws of Kenya.

29. Following, it is evident that such notices issued by the Landlady on the 11th February 2019, 5th October 2023 and 19th October 2023 do not meet the threshold as required under Section 4 of Cap 301 Laws of Kenya. The rationale is premised on the idea that such eviction notices issued by the Landlady in the form of letters addressed to the Tenant are not in conformity to the prescribed form A under Regulation 4 of the 1966 Regulations.

30. Further, the eviction notice sent on behalf of the Landlady to the Tenant dated 5th October 2023 required the Tenant to vacate the premises within 30 days upon receipt of the letter which is against the two (2) months statutory period required under Section 4 (4) of Cap301 Laws of Kenya.

31. The Tribunal notes that the Landlady issued a further notice of termination of tenancy dated 11th December 2023 yet another notice was issued by the Landlady to the Tenant dated 11th February, 2019 requiring the Tenant to vacate within a lesser period of one (1) month.

32. The other issue was the notice dated 19th October, 2023 which was sent through the 2nd Respondent to the Tenant requiring the Tenant to vacate the suit premises by 5th November, 2023.

33. In addition the landlady appeared in person twice in the absence of the Tenant for the hearing of this matter and urged the court to accept her notices cumulatively and also consider that the Tenant has destroyed her house, has converted the business premises to a living premises and is in arrears of rent and ought not to given audience by this tribunal.

34. In addition, the landlady claimed the tenant has moved to the chief and also to the tribunal with all these false allegations she is tired of her and just wanted her out.

35. In light of the above circumstances, this Tribunal is convinced that the relationship herein has indeed broken down the several notices issued taken cumulatively and the reasons advanced and the absence of the Tenant at the hearing when she moved this tribunal is good enough to grant the landlord her wishes

G. Orders 36. In the upshot, the Tenant’s Application and Reference both dated 5th December 2023 are dismissed in the following termsa.The landlord is at liberty to obtain vacant possession of the suit premises by 31st of January 2024. b.The Landlord at liberty to distress for rent.c.The OCS Kibera Police to assist with compliance.d.Each party to bear their own costs.

RULING DATED, DELIVERED AND SIGNED AT NAIROBI ON THIS 26TH DAY OF JANUARY 2024 IN PRESENCE OF AGNES, THE LANDLORD IN PERSON. NO APPEARANCE FOR THE TENANT.HON. A MUMAAG. CHAIR/MEMBERHON JACKSON ROPMEMBERBUSINESS PREMISES RENT TRIBUNAL