Peter Bodo Okal t/a Bodo General Hardware v Wycliffe Nyakundi of Befama House [2022] KEBPRT 73 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E193 OF 2021 (NAIROBI)

PETER BODO OKAL T/A         ...

BODO GENERAL HARDWARE...............................................TENANT/APPLICANT

VERSUS

WYCLIFFE NYAKUNDI OF BEFAMA HOUSE......DEFENDANT/RESPONDENT

RULING

1. The Tenant’s notice of motion dated 9th June 2021 seeks orders of injunction restraining the Landlord/Respondent from interfering with the tenancy agreement between himself and the Applicant and from evicting the Applicant from the premises known as Befama House, Katami.  The Tenant has also sought that he be granted leave to file a reference out of time to the notice by the Landlord/Respondent dated 4th March 2021. The application is supported by the affidavit of Andrew Ombwayo Advocate for the Tenant and the grounds exhibited on the face of the said application.

2. The Applicant’s main contention is that he was served with a termination notice dated 4th March 2021 but was unable to respond to the same due to changes in the filing system at the Tribunal and that the Tenant is in lawful occupation of the suit premises and he has no rent arrears.

3. The application is opposed.  The Respondent has filed a replying affidavit which is to the effect that the Tenant herein has constructed illegal structures on the suit premises and is a nuisance to the other Tenants.  The Respondent further states in his affidavit that he issued the Tenant with a termination notice taking effect the 1st day of June 2021 and the Tenant has never opposed the same.

4. The Tenant’s submissions seems to address themselves to the notice of termination received by the Tenant on 10th December 2020.  That notice was found to be defective by the orders issued by the Tribunal on 8th March 2021 in BPRT case No 58 of 2021.  The orders issued on that case finalized the same and it is my view that the matter is closed/finalized.  The Tenant has not addressed himself to the notice of termination issued on 4th March 2021.

5. The Tenant’s reference brought under section 12(4) of Cap 301 is the one dated 9th June 2021.  The reference was filed after the notice to terminate tenancy had taken effect on 1st June 2021.  I do note that in the said reference, the Tenant stated that the notice had “expired” and the requested to be allowed to file the reference out of time.

6. On 11th June 2021, the Tribunal issued orders of injunction against the Landlord/Respondent and also granted leave to the Tenant/Applicant to file reference out of time to the notice by the Landlord/Respondent dated 4th March 2021.  I have carefully gone through the pleadings in this matter and I have not seen any reference filed by the Tenant as ordered by the Tribunal on 1st June 2021.

7. As things therefore stand, the notice of termination by the Landlord/Respondent dated 4th March 2021 is not opposed.  The orders of injunction sought in the notice of motion cannot be granted in the absence of a valid reference opposing the Landlord’s notice to terminate the tenancy.  The notice of motion is dismissed.

8. Section 10 of Cap 301 provides that where a Tenant who has received a notice from the Landlord to terminate fails to refer the matter to the Tribunal, then the notice has effect from the date therein specified.  In the absence of a valid reference before the Tribunal, I do find that the notice took effect on 1st June 2021 being the date therein specified.  The tenancy between the parties stand terminated from the said date.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI (CHAIRMAN) THIS 15TH DAY OF FEBRUARY, 2022 IN THE PRESENCE OF KINYUA FOR THE LANDLORD AND IN THE ABSENCE OF THE TENANT.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL