Sharrif t/a Mustafa Ration Shop v Ali [2022] KEBPRT 178 (KLR)

Sharrif t/a Mustafa Ration Shop v Ali (Tribunal Case E079 of 2022) [2022] KEBPRT 178 (KLR) (Civ) (10 June 2022) (Ruling)

Neutral citation: [2022] KEBPRT 178 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E079 of 2022

Gakuhi Chege, Vice Chair

June 10, 2022

Between

Mustafa Sharrif t/a Mustafa Ration Shop

Applicant

and

Hassan Mohamood Ali

Respondent

Ruling

1. The basis of the present complaint is a notice to alter terms of tenancy dated 18th November 2021 served upon the tenant one Mustafa Sharrif Abdalla by Hassan Mohamood Ali who describes himself as the Landlord seeking to increase the Tenant’s rent in respect of plot no. 20/Nanyuki Block 4/88 from Kshs.3000/- to Kshs.30,000/- with effect from 1st January 2022.

2. The chief complaint is that the person purporting to issue the notice is not a duly authorized agent of the landlord and that the period of the notice is only 15 days as opposed to 2 months required by law.

3. It is sought to declare the notice invalid and of no legal effect or consequence. The tenant seeks to restrain the Respondent from interfering with his quiet possession and enjoyment of the suit premises on the basis of the impugned notice.

4. The suit property was owned by one Ali Guled (Deceased) and is managed by Marite Enterprises Ltd on behalf of the deceased’s estate.

5. The application is opposed through the replying affidavit of the Respondent sworn on 25th March 2022 wherein he deposes that he is a grandson of the deceased proprietor who died in the year 1956 as evidenced annexure ‘HMA1’.

6. The Respondent admits that the termination notice was received late and thus outside the prescribed time due to the applicants unavailability. As such a fresh notice marked ‘HMA2’ was subsequently served upon the tenant.

7. Without going into any other details, the following are the issues for determination herein:-a.Whether the notice to alter terms of tenancy dated 18th November, 2011 is valid.b.Whether the Respondent had capacity to issue such notice.c.Whether the applicant is entitled to the reliefs sought in the application and complaint.d.Who is liable to pay costs of the reference?

8. I have looked at the provisions of Section 4(4) of Cap. 301 and noted that no tenancy notice shall take effect less than two months after the receipt thereof by the receiving party as shall be specified therein.

9. In this matter, the tenant deposes that he received the notice on 20th December 2021 whereas the notice is dated 18th November 2021 which is clearly in contravention of Section 4(4) of Cap. 301, Laws of Kenya. As such, I find and hold that the notice is defective and therefore invalid.

10. Secondly, the notice is being attacked on the grounds that it was issued by a person who is not authorized. It is submitted on behalf of the Applicant that the Respondent issued the notice yet he was not a duly authorized agent of the landlord nor an administrator of the estate of the deceased as required by law and the ruling in Nyeri Tribunal Case No. 77 of 2020. The suit property, it is submitted belongs to Ali Guled (deceased) and the monthly rent is collected by Marite Enterprises Ltd who are the rightful agents.

11. I have been referred to Nyeri BPRT No. 77 of 2020 involving the same estate wherein I addressed the issue of who can serve notices under Cap. 301, Laws of Kenya in respect of estates of deceased persons. Guided by the decision in Ramadhan Mohamed Ali – vs- Hashim Salim Ghanim (2013) eKLR, I proceeded to hold that the agent was entitled to issue notice under Cap. 301, Laws of Kenya notwithstanding lack of letters of administration in respect of the deceased landlord’s estate.

12. Section 2 of Cap. 301, Laws of Kenya defines the term landlord as follows:-“Landlord in relation to a tenancy, means the person for the time being entitled, as between himself and the tenant, to the rents and profits of the premises payable under the terms of the tenancy”

13. The Respondent deposes at paragraph 7 of the replying affidavit as follows:-“That the landlord’s agent has been collecting rent on behalf of the landlord and his family because they were based abroad and every attempt to have the rents reviewed have borne no fruits as the Applicant approaches courts for restraining orders every time the issue is raised both at the shop and residence”.

14. According to annexure ‘HMA1’, the Respondent is one of the grandchildren of the deceased landlord and therefore a person entitled to the rents and profits accruing from the premises. He is therefore clothed with the necessary capacity to issue notices under Cap. 301, Laws of Kenya.

15. As to whether the applicant is entitled to the reliefs sought, I find and hold that the answer to that issue is in the affirmative. This is so because, the notice sought to be enforced having been declared invalid renders any actions funded on it inconsequential.

16. In the premises, the final orders that commend to me are:i.The notice to alter terms of tenancy dated 18/11/2021 is invalid under section 4(4) of Cap. 301, Laws of Kenya.ii.The Respondent is hereby restrained from enforcing the proposed new rent based on the tenancy notice dated 18/11/2021 herein declared invalid.iii.The Respondent’s notice dated 22/2/2022 having not been subject matter of the instant proceedings shall not be affected by this ruling.iv.The Respondent is exempted from the provisions of Section 9(3) of Cap. 301, Laws of Kenya.v.Costs of the reference in the sum of Kshs.20,000/- is awarded to the tenant.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10TH DAY OF JUNE 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Miss Wanyama for the TenantNo appearance for the Landlord