Optex Opticians Limited & another v Omondi [2025] KEBPRT 147 (KLR)

Optex Opticians Limited & another v Omondi (Tribunal Case E042 of 2024) [2025] KEBPRT 147 (KLR) (24 January 2025) (Ruling)

Neutral citation: [2025] KEBPRT 147 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E042 of 2024

J Osodo, Chair & Gakuhi Chege, Member

January 24, 2025

Between

Optex Opticians Limited

1st Applicant

Jacob Ongare

2nd Applicant

and

Steve Omondi

Respondent

Ruling

A. Dispute Background 1. The tenants/applicants moved this tribunal vide a reference under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301, dated 13th September 2024 with complaints that the landlord has consistently interfered with the tenant’s quiet possession of the suit premises including threatening to evict the tenants, removing their office equipment on the unfounded basis of expired lease agreements and without furnishing the tenants with a copy of the counter-signed lease agreement.

2. The tenants filed a notice of motion under a certificate of urgency dated 13th September 2024 in which they sought the following orders; -i.That the application be certified urgent.ii.That the tribunal do issue an interim order of injunction restraining the respondent from interfering with the tenants’ peaceful occupation of the suit premises situated at L.R No. 56 Migori County pending the hearing of the application.iii.That pending the hearing and determination of the application, the tribunal issues an order of stay of the purported termination of the lease between the parties.iv.That pending the hearing and determination of the main suit, the respondent be restrained from interfering with the tenants’ peaceful occupation of the suit premises,v.That the OCPD Migori Police Station assists in the enforcement of the orders.vi.That the costs of the application be provided for.

3. The application is supported by an affidavit of even date in which the 1st applicant/tenant deposes as follows; -i.That on 30th August 2024, he was notified by a member of staff that they had received a letter dated 30th August 2024 with the subject matter “Expiry of Lease”. A copy of the image of the letter is annexed as “PKN-2”.ii.That since the said date, the applicants have tried to no avail to get the respondent to abandon his quest to evict the 1st applicant.iii.That the 1st applicant collaborated with the 2nd applicant to reach an amicable solution with the respondent who has been hostile.iv.That he was notified by the employees that the landlord in the company of some individuals at the suit premises proceeded to show the individuals around in a manner to suggest that they were prospective tenants.v.That the notice to terminate tenancy is actuated by malice and is illegal as the landlord did not give any valid reason.vi.That the applicants have been paying rent dutifully.

4. The application is supported by another affidavit of even date in which the 2nd applicant/tenant deposes similar statements to those deposed by the 1st applicant above.

5. On 24th September 2024, the court issued orders restraining the respondent from interfering with the tenants’ peaceful occupation of the suit premises pending hearing inter-partes.

6. The application is opposed by the replying affidavit of the respondent dated 7th October 2024 in which he deposes as follows; -i.That he had respective lease agreements with the tenants on specific terms which coincidentally expired on 1st September 2024. Copies of the tenancy agreements are annexed as “SOO-1 (a), 1(b)”.ii.That the expiry date of 1st September 2024 for both tenancy agreements is a fact which is not in dispute.iii.That he had no intentions of renewing the tenancy agreements.iv.That the respondent’s correspondences alluded by the tenants were not termination notices but were intimation of the respondent’s unwillingness to renew the tenancy agreements.

7. The 2nd applicant filed a notice of withdrawal from the suit which is dated 31st October 2024 and at a court mention on 4th November 2024 the court ordered that the case by the 1st tenant proceeds and the matter be disposed of by way of written submissions.

8. Only the tenant complied and filed his written submission dated 12th November 2024 which we shall consider while dealing with the issues for determination.

B. Issues for determination 9. The following are the issues for determination; -a.Whether the 1st applicant/tenant is entitled to the orders sought in the application dated 13th September 2024. b.Who shall bear the costs of the application?

Issue (a) Whether the 1st applicant/tenant is entitled to the orders sought in the application dated 13th September 2024. 10. The applicant approached the tribunal seeking orders restraining the landlord from interfering with his peaceful occupation of the suit premises as well as orders of stay of the purported termination notice.

11. There is no denial that the parties herein have a landlord/tenant relationship and that the lease agreement between the parties was for a period of 22 months commencing on 1st November 2022 to 1st September 2024, therefore the tenancy is a controlled tenancy and must follow the dictates of Cap 301 Laws of Kenya.

12. The landlord in his replying affidavit has sworn that he has no intention of renewing the said lease agreement and that the correspondences to the tenant were not termination notices but rather intimations of his unwillingness to renew the tenancy agreement.

13. The tenant in his written submissions states that the tenancy is a controlled tenancy and that the termination notice issued is illegal.

14. We have perused the evidence tendered in the matter and we find that the letter to the applicant from the landlord dated 30th August 2024 which indicates the landlord’s unwillingness to renew the said lease agreement is not a proper notice to terminate tenancy under the dictates of Cap 301 laws of Kenya.

15. We shall rely on the case of Manaver N Alibhai t/a Diani Boutique – vs- South Coast Fitness & Sports Centre Limited Civil Appeal No. 203 of 1994 where it was held as follows: -“The Act lays down clearly 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.”

16. The terms of the lease agreement notwithstanding, a termination of tenancy notice ought to comply with the dictates of Section 4(2) of Cap 301.

17. Based on the above analysis, we shall allow the 1st applicant’s/tenant’s application and shall grant leave to the respondent/landlord to issue a proper notice to terminate the tenancy in accordance with Section 4(2) of Cap 301.

Issue (b) Who shall bear the costs of the application? 18. As regards costs, the same are in the Tribunal’s discretion under Section 12(1)(k) of Cap. 301, but always follow the event unless for good reasons otherwise ordered. We shall order costs to the tenant/1st applicant in view of the fact that the landlord/respondent is wrong in failing to follow the provisions of Cap. 301, Laws of Kenya in so far as termination of tenancy is concerned.

C. Orders 19. In conclusion, the following final orders commend to us;a.The landlord’s notice to terminate tenancy dated 30th August 2024 is declared invalid and unlawful.b.The application dated 13th September 2024 is hereby allowed as prayed.c.The reference dated 13th September 2024 is settled in termsd.The landlord is at liberty to issue a notice to terminate tenancy in the prescribed form in accordance with Section 4(2) of Cap 301 Laws of Kenya.e.Costs of KES. 30,000 to the tenant/1st applicant to be offset against the rent account.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 24TH JANUARY 2025HON. JOYCE AKINYI OSODO - PANEL CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGE - MEMBERRuling delivered in the absence of parties