Robert Gachigo v Chuma Mbili Properties & Mercy Muthoni [2021] KEBPRT 136 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 637 OF 2020 (NAIROBI)

ROBERT GACHIGO ............................................................................... TENANT/APPLICANT

VERSUS

CHUMA MBILI PROPERTIES.....................................................1ST RESPONDENT/AGENT

MERCY MUTHONI...............................................................2ND RESPONDENT/LANDLORD

RULING

Parties and their Representative

1.   The Tenant/ Applicant, Robert Gachigo, rented space on Plot No.3 Mwiki Kasarani room 1 & 2 Road for the business (herein after referred to as the ‘Tenant’)

2.   Learned Counsel Ndichu Associates & Co. Advocates represents the Tenant in this reference. ndichukihanya.adv@gmail.com

3.   The Agent/ 1st Respondent Chuma Mbili Properties is the agent of the landlord on the suit premises on PLOT NO. 3 Mwiki Kasarani rented out to the tenant (herein after referred to as the ‘Agent’).

4.   The Landlord/ 2nd Respondent Mercy Muthoni is the landlord and owner of suit premises on PLOT NO. 3 Mwiki Kasarani rented out to the tenant (herein after referred to as the ‘Landlord’).

5.   Learned Counsel Ombachi Moriasi & Co. Advocates represents the Landlord/ Respondent. ombachimoriasiadvocate@gmail.com

The Dispute Background

6.   On or about 30th February 2012 a lease agreement was reduced into writing between Engineer Robert Nyamu as the lessee and Chuma Mbili Properties Ltd as the agents of the lessor wherein the landlord had agreed to lease out the premised being Plot No. 3 Mwiki Kasarani room 1 &2.

7.   The Tenant through a letter dated 14th May 2020, the tenant through their advocates addressed the Respondents on increment of rent on plot No.3 Mwiki Kasarani Room 1 &2 and opted to surrender room 2 citing adverse effects of Covid -19 pandemic on the business that they operated.

8.   On 1st June 2020, the Landlord served a three (3) months’ Notice to quit to the tenant with effect from 3rd August 2021 on grounds of irregular payment of rent.

9.   On 3rd July 2020, the Tenant moved this tribunal by way of notice of motion dated 15th June 2020 and   certificate of urgency dated on 15th June 2020 under Section 12 (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301, to oppose to the notice to quit  Tenancy and seeking amongst other orders quite enjoyment of the suit premises and stay of the Notice to Quit Tenancy dated 1st June 2020 by the landlord pending hearing and determination of the application and reference. Further the tenant sought that the Tribunal orders the Tenant to continue paying rent for one room at Kshs. 12,500.

10. This Tribunal granted orders of temporary injunction restraining the Respondent by themselves, their agents and employees or otherwise from evicting, harassing, trespassing or interfering with the Applicant’s suit premises at Mwiki Kasarani and that the Tenant continues to pay rent for one shop room no. one (1) at Kshs. 12,500 pending hearing and determination of this application on 14th July 2020; the same is in force to date.

11. The landlord through form A dated 2nd February 2021, moved to this Tribunal to issue notice to terminate or alter terms of the tenancy under Section 4 (2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 claiming the tenant is in arrears, demolition and construction.

Jurisdiction

12. The Jurisdiction of this tribunal is not in dispute.

The Tenants Claim

13. The tenant filed a notice of motion application dated 15th June 2020 and certificate of urgency and supporting affidavit sworn on 15th June 2020 and written submissions on 30th July 2021, these pleadings form the basis of this claim.

14. The tenant obtained stay orders as against the landlord’s notice to terminate tenancy on 7th July 2020 and to date the landlord is still restrained from interfering with quite possession of the suit premises by the tenant either by closing or evicting the tenant. The basis of their claim is that the notice to quit tenancy is malicious, unjustified.

The Landlords Claim

15. The landlord on the other hand have filed on 22nd March 2021 grounds of opposition and annexed a replying affidavit dated on 10th July 2020 and a reference dated 2nd February 2021, she moved to this Tribunal to issue Notice to Terminate or Alter Terms of the Tenancy under Section 4 (2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 claiming the tenant is in arrears, demolition and construction from 1st May 2021.

16. Parties filed written submission

17. I have had occasion to peruse the pleadings above-mentioned of both the landlord and tenant and also the landlords and Tenants written submissions and I will not rehearse the same again as they are brief and to the point.

18. I will refer to them in my analysis below where relevant and I thank parties for the same.

Matters Not in Dispute

19. There is no dispute that the Tenant paid rent on the suit premises at the time of the notice to terminate tenancy by the Landlord.

Issue for Determination

20. The parties raised certain issues for determination in their submissions and in their affidavits that centered on the key issue hereunder, therefore, the tribunal shall proceed to distill the key issue of contention discussed by parties and their counsels who submitted in writing as below:

Whether the Landlord’s Notice to Terminate the Tenancy as under section 4 (2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 to the tenant is correctly founded in law?

Analysis and Findings

21. The pleadings emanate from the termination notice in the standard form A under Section 4(2) dated and filed on 2nd February 2021. I have perused the said Notice and find that it states the grounds of termination of the Tenancy as: demolition, tenant is in arrears and termination”.

22. Section 4 (5) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 provides that a tenancy notice shall not be effective for any of the purposes of this Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration or reassessment concerned and requires the receiving party to notify the requesting party in writing, within one month after the date of receipt of the notice, whether or not he agrees to comply with the notice.

23. Further section 7(f) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301provides the grounds on which a landlord may seek to terminate tenancy; “that on the termination of the tenancy the landlord intends to demolish or reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises”

24. The Applicant on the other hand had a replying affidavit dated 12th July 2021 to oppose the notice to terminate the tenancy served by the Landlord dated 2nd February 2021 and contends that he is the only Tenant among other Tenants who was issued with the termination notice on grounds of demolition, that he had paid accrued rent arrears before filing of this application on 26th July 2021 and the subject lease relied by the Landlord was a fraud as they had not signed the lease agreement.

25. The lease agreement provided for a termination clause and therefore, the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 provides a controlled tenancy as inter alia a tenancy agreement that contains provision for termination, otherwise than for breach of covenant, within five years.

26. Be it as it may, an eviction or termination notice is a germane issue and needs to be addressed in limine.

27. A Landlord who wishes the Tribunal to consider and uphold its notice to alter or end tenancy on grounds of demolishing or reconstruction of premises needs to furnish and move the Tribunal with supporting evidence. In addition where the Tenant has been irregular in paying rent evidence of rent arrears or that a similar notice has been issued to other tenants in the premises (if any) or that the Landlord has already obtained new plans for the development of the area such as city council plans or that the landlord has proof of funds to be used to rebuild the premise.

28. The Applicant on the other hand contends that there exist no valid lease Agreement between the Landlord and the Tenant and further avers that the purported Agreement dated 1st March, 2014 presented before the Tribunal by the Tenant is invalid and has no legal effect as it was signed by a third party unknown by her and therefore seeks the tribunal to uphold the notice to terminate Tenancy. Be as it may it is worth noting the Landlord does not deny receiving rent on the premises in question.

29. The receipt of rent amounts to a month to month tenancy thereby making this relationship a controlled tenancy under the act.

30. That said I have in addition looked at the notice of termination, I find that the Landlord in the present case has not given valid reasons and/or enough accompanying evidence to support the intended termination notice and therefore in absence of such the termination notice is therefore cannot be upheld by Tribunal.

31. The decision of the Tribunal is guided as under section 9 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 that “Upon a reference a Tribunal may, after such inquiry as may be required by or under this Act, or as it deems necessary—

a)  approve the terms of the tenancy notice concerned, either in its entirety or subject to such amendment or alteration as the Tribunal thinks just having regard to all the circumstances of the case; or

b)  order that the tenancy notice shall be of no effect;

c)   and in either case make such further or other order as it thinks appropriate.”

Orders

For the reasons given above I ORDER as follows that:

a)  The Landlord’s Termination Notice dated 2nd December 2021 is invalid and of no effect.

b)  The Applicant/ Tenant’s Application dated15th June 2020 is upheld.

c)   The landlord is hereby restrained from interfering with quite possession of the suit premises by the tenant either by closing or evicting the tenant.

d)  The Tenant to pay rent as and of when its falls due at the agreed monthly rate failure to which the landlord is at liberty to distress.

e)   The reference by the Tenant dated 15th June 2020 is effectively compromised.

f)   Each party to bear their own costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Rulingdated, signed and delivered virtually by Hon A. Muma this 12thday ofNovember, 2021 in the presence of Moraafor theLandlordand Giochefor Ndichufor theTenant.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL