Perita Munyasa v Godfrey Shitanda [2021] KEBPRT 455 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO. 16 OF 2021 (KAKAMEGA)

PERITA MUNYASA.........LANDLORD

VERSUS

GODFREY SHITANDA.........TENANT

RULING

The Landlady herein filed a reference dated the 2nd day of February 2021. The complaint in the said reference is that the Tenant had not made any reference to oppose the termination notice dated 22nd October 2020 and served on him the same day. The statutory period for the notice to take effect has since lapsed. She made an application to this Tribunal to order the Tenant to vacate the premises for purposes of starting her own business in the premises.

The Tenant filed a Replying affidavit on the 17th day of February 2021. In the said Replying Affidavit the Tenant acknowledges receipt of the notice on 22nd October 2020 but he did not make a response to the same, neither did he file a reference to oppose it.  He therefore seeks for time (a period of five years) to clear a loan he took from Equity Bank then vacate the premises.

On 23rd February 2021 the reference came up for hearing. During the hearing, the Tenant indicated that he received the notice under Cap 301 but was not aware that he was supposed to file a reference to oppose it and therefore requested for more time to look for alternative premises to transfer his business.

He testified on oath and confirmed to have received the said notice on 22nd October 2020 but was not aware that he needed to file a reference. He further stated that he had talked to the Landlady, but that they had not reached an agreement and was insistent on him moving out.

The Tenant also stated that he can move out at any time but his Equity loan has been rescheduled fromFebruary 2021 to 21st December 2023and he prays that he be allowed to continue staying in the premises as it is not easy to get another premise.

The Landlady stated that her wish is to have the Tenant move out since he does not pay well and she gave him a notice which he does acknowledge.

ANALYSIS AND DETERMINATION.

Upon perusal and analysis of the filed documents and having heard the contention of both parties, the issues for determination in this matter are whether the termination notice given on 22nd October 2020 came to effect and whether the Landlord- Tenant relationship exists.

Section 4 of the Landlord & Tenant (Shops, Hotels & Catering Establishments) Act explicitly provides that there can be no termination and alteration of the terms and conditions of a controlled tenancy other than provided therein. It is evident from the documents filed by the Landlady that she indeed complied with the provisions of Section 4 (2) of the Act as she issued a proper notice of termination to the Tenant on 22nd October 2020.

The notice required the Tenant to intimate in writing within one month whether or not he was congruent with the notice. The Tenant received the said notice without demur. He neither notified the Landlord in writing that he opposed the notice as per section 4(5) of the Act nor filed a reference to this Tribunal in accordance to Section 6 of the Act.

The tenancy ended when the termination came to effect on 22nd December 2020 as it is provided for under Section 4(4) and Section 10 of the Act. This crystallized the Landlady’s right to take over possession of the premises as the Landlord- Tenant relationship ceased to exist on the said date.

Under section 10 of Cap 301 failure to file a reference to this Tribunal renders one a trespasser.  The Tenant herein failed to file a reference to oppose the said notice and this honourable Tribunal cannot interrogate whether the reasons for termination given by the Landlady in her notice were justified or not.

FINAL ORDERS.

As must be clear from the foregoing legal provisions and the reasons given hereinbefore, it is hereby ordered that;-

1. The reference is allowed and the Tenant is hereby ordered to give vacant possession of the demised premises forthwith and in default, the Landlady shall be at liberty to apply for execution under section 14 of Cap 301.

2. The Tenant shall bear the costs of the reference assessed at Kshs 20,000/-.

PATRICIA MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIA EMAIL THIS 12TH DAY OF MARCH 2021

PATRICIA MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL.

To;  Momanyi, Manyoni & Co. Advocates Counsel for the Tenant.

Perita Munyasa - Landlady.