Oyoo t/a Trust Care Medical Center v Rota [2025] KEBPRT 170 (KLR)

Oyoo t/a Trust Care Medical Center v Rota (Tribunal Case E056 of 2024) [2025] KEBPRT 170 (KLR) (4 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 170 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E056 of 2024

A Muma, Member

March 4, 2025

Between

Jane Sophie Oyoo t/a Trust Care Medical Center

Tenant

and

Anthony Okomo Rota

Landlord

Ruling

A. Parties and their Representatives 1. The Tenant/Applicant, Jane Sophie Oyoo (the “Tenant”) is the tenant of the premises situate within Rongo Town in Migori County (the “suit premises”).

2. The firm of Ogwe & Associates Advocates represents the Tenant in this matter.

3. The Landlord/Respondent, Anthony Okomo Rota is the registered proprietor of the suit premises hence the Landlord herein.

4. The Landlord appears in person in this matter.

B. Background of the Dispute 5. Through a Reference and an Application dated 4th October, 2024 canvassed through Certificate of Urgency of even date, the Landlord moved this Honorable Tribunal seeking the following orders inter-alia: an order restraining the Landlord from terminating the tenancy pending hearing and determination of the Reference and the Application, OCS Kamagambo Police Station do ensure compliance with the said orders and the costs of the Application.

6. Upon perusal of the Tenant’s Application, the Court, on 9th October, 2024, issued the following directions ex-parte; the suit be scheduled for inter-partes hearing on 22nd October 2024, an order directing the Tenant to serve the pleadings upon the Landlord and subsequently file an Affidavit of Service to that effect.

7. The Tenant served the pleadings upon the Landlord on 17th October, 2024 and filed an Affidavit of Service dated 22nd October, 2024. The Landlord appeared in person and subsequently filed a Replying Affidavit dated 22nd October, 2024.

C. Tenan’s Case 8. The Tenant, in her Supporting Affidavit avers that she entered into a lease agreement with the Landlord on 15th September, 2020 with respect to the suit premises.

9. The Tenant further avers that on or about September, the Landlord issued her with an unlawful and illegal and defective notice purporting to terminate the tenancy and consequently evict her for delayed payment of rent.

10. She added that after issuance of the said notice, the Landlord threatened her life through her mother and further threatening to destroy all the properties in the suit premises.

D. Landlord’s Case 11. In opposition to the Tenant’s Reference and Application, the Landlord in his Replying Affidavit avers that he issued the Tenant with the termination notice in the month of June which was to take effect on 15th September, 2024. The said notice was undated.

12. The Landlord further added that the purpose of the termination was because the Tenant had become abusive, dirtying the premises, not paying electricity bill which accumulated to Kshs.51,000, late payment of rent and renovation.

E. Issues For Determination 13. Having carefully perused the pleadings presented before this Tribunal by the parties. It is therefore my respectful finding that the issues for determination are as follows:i.Whether the tenancy termination notice issued by the landlord is valid.ii.Who should bear the costs of the instant matter?

F. Analysis and Determination i. Whether the tenancy termination notice issued by the landlord is valid 14. Section 4 (2) of the Act expressly specifies the criteria that a landlord’s termination notice must meet to be considered valid. It stipulates that:“(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.”

15. The required form is Form A as set out under Regulation 4(1) of Legal Notice 19 of 1966. The words as expressed in the regulations are as follows:” (1)A notice under section 4(2) of the Act by a landlord shall be in Form A in the Schedule to these Regulations.”

16. The grounds on which landlord may seek to terminate tenancy are set out under Section 7 of Cap 301. The reasons for termination set out in the notice must set out any of the reasons enumerated under Section 7.

17. Further, Section 4(4) of Cap 301 provides that no tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party.

18. The legal position stipulated under the Act was reiterated in Manaver N. Alibhai T/A Diani Boutique vs. South Coast Fitness & Sports Centre Limited, Civil Appeal No. 203 of 1994, where the court stated:“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. (Emphasis)

19. Looking at the pleadings filed before this Tribunal, the Landlord issued an undated notice to vacate which was meant to take effect on 15th September, 2024. The Tenant averred that the said notice was issued in September while the Landlord stated that he issued the notice in June. Without the date of the notice and any proof to show that the same was served upon the Tenant, this Tribunal can therefore not conclusively decide on when it was issued.

20. Further, the said notice listed the reasons for termination as late payment and lack of respect. However, the Landlord has not placed any material before this Court to demonstrate late payments of the alleged lack of respect.

21. Additionally, the notice is not in the prescribed Form A. Further, it did not ask the tenant to notify him in writing whether or not the Tenant agrees to comply with the notice.

22. In light of the above, the undated notice of termination falls short of the requirements of a notice of termination for a controlled tenancy under Section 4 and Section 7 of Cap 301 and is therefore invalid.

ii. Who should bear the costs of the instant matter? 23. Section 12(1)(k) accords this tribunal the powers to award costs with respect to applications and references made to it. It is trite law that costs follow event. In Republic vs Rosemary Wairimu Munene, Ex-Parte Applicant Vs Ihururu Dairy Farmers Co-operative Society Ltd Judicial Review application no 6 of 2014 the court held as follows: -“The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event....... It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.’’

24. In light of the foregoing, I therefore award the costs of the instant application and reference to the Tenant.

G. Orders 25. In the upshot, the Tenant’s Reference and Application dated 4th October, 2024 is hereby allowed in the following terms:a.The Landlord, his agents or otherwise are hereby restrained from terminating the tenancy of the Tenant, harassing or interfering with the peaceful stay of the Tenant on the premises;b.The Landlord is at liberty to issue a fresh notice in line with the provisions of Cap 301;c.OCS Kamagambo Police Station to ensure compliance with these orders andd.The costs to the Tenant assessed at Kshs.10,000.

HON A. MUMAMEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, DELIVERED AND SIGNED AT NAIROBI ON THIS 4TH DAY OF MARCH 2025 IN THE PRESENCE OF OGWE FOR THE TENANT AND IN THE ABSENCE OF THE LANDLORD.HON A. MUMAMEMBER