Ronald Mburu & Felix Kilungya v David Ndonye [2021] KEBPRT 393 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO E042 OF 2021 (NAIROBI)

RONALD MBURU.................TENANT/1ST APPLICANT

FELIX KILUNGYA...............TENANT/2ND APPLICANT

VERSUS

DAVID NDONYE..................LANDLORD/RESPONDENT

RULING

The Tenant/Applicants’ complaint against the Landlord dated 21st April 2021 is that the Landlord has arbitrarily and illegally increased rent astronomically and has illegally threatened to evict the Tenants from their business premises situated in the building known as Gracious House Kitengela contrary to the provisions of Cap 301 of the Laws of Kenya.

The Tenants’ application has sought for the following prayers (paraphrased);

1. Spent

2. Spent

3. That the Landlord be restrained by orders of this Tribunal from in any way interfering with the Tenant’s quiet possession of the suit premises known as shops Nos 4, 6 and 7 situated on that building known as Gracious House, Kitengela, Kajiado County pending the hearing and determination of this complaint/reference.

4. That the Landlord be restrained from illegally and/or arbitrarily raising rent pending the hearing and determination of this complaint.

5. The OCS Kitengela does assist in enforcement of the orders and maintenance of peace and order.

6. Costs.

The grounds upon which the application is brought and the affidavit in support thereof may be summarized as follows;

1. That the Landlord has threatened to illegally increase rent and evict the Tenants.

2. That the Landlord has not issued the Tenants with any notice as provided for under the law.

3. That the Tenants have no rent arrears.

The notice to increase rent complained of is the one annexed to the Tenants’ affidavit and marked BM2.  I have seen the same.  It does not meet the requirements of section 4 of Cap 301 which requires the notices to alter terms and conditions to be in the prescribed form under the Act.  The notice also fails to meet the requirements ofsection 4(4) and section 4(5) of the Act.  It does not state the reasons for the rent increment, does not require the Tenant to notify the Landlord within one month whether he intends to comply with the notice and the period of the notice is also not specified.

There being no evidence that this lease agreement between the parties herein was in writing, it is assumed that the tenancy herein is controlled tenancy.  The giving of the proper notice under section 4(2) of Cap 301 where a Landlord wishes to terminate a tenancy or to alter the term thereof to the detriment of the Tenant is mandatory.  I find that in this case, the notice to increase rent does not meet the threshold set out under section 4(4) and section 4(5) of Cap 301.  It is invalid and of no effect.

The Landlord in his submissions state that he issued to the Tenant a valid notice to terminate the tenancy and that the said notice was in the nature of one prescribed by law.  That indeed the Landlord served the Applicants with a three months’ notice to vacate.  The Landlord also states that his notice provides the reason for termination.  On the need to undertake substantial renovations upon the premises.

The parties to this dispute are not in agreement as to which notice was issued.  The Tenants refer to the notice to increase rent and a threat to illegally evict without notice while the Landlord refers to his notice to terminate the tenancy on account of the need to carry out substantial renovations on the premises.  I have looked at the notice referred to by the Landlord and annexed to his submissions.  It is indeed a three months’ notice running from 28th January 2021 to 28th April 2021.  The reason for the notice is that the owner needs to renovate the premises.

This notice too is not in the form prescribed under the Act at section 4(2).  It does also not meet the requirements of section 4(5) of Cap 301 in its failure to require the Tenant herein to indicate to the Landlord within one month of the receipt of the notice whether he intends to comply with the notice.  It is a defective notice and of no effect.

I therefore find that irrespective of the differences in the notices the parties here have sought to refer to both notices are invalid and consequently of no effect.

In the circumstances, I do find that the Applicant’s complaint and application have merit.  I allow the Tenants’ application dated 21st April 2021 in terms of prayers 3, 4, 5 and 6 of the said application.

Having declared the notices herein as of no effect, I also allow the Tenants’ complaint dated 21st April 2021 in terms of the above orders.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING READ AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 30TH DAY OF JULY, 2021 IN THE PRESENCE OF MR KIVUVA FOR THE LANDLORD AND IN THE ABSENCE OF THE TENANTS.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL