Sheikh t/a Saba’a Restaurant v Green Hills Properties Limited [2025] KEBPRT 189 (KLR)

Sheikh t/a Saba’a Restaurant v Green Hills Properties Limited (Tribunal Case E632 of 2024) [2025] KEBPRT 189 (KLR) (27 January 2025) (Ruling)

Neutral citation: [2025] KEBPRT 189 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E632 of 2024

P Kitur, Member

January 27, 2025

Between

Hisham Mohamed Sheikh T/A Saba’A Restaurant

Applicant

and

Green Hills Properties Limited

Respondent

Ruling

A. Parties 1. The Respondent is a Landlord of the property known as Plot No. LR 36/VII/292 Major Mureithi Street House No. 2 (hereinafter referred to as ‘the suit premises’).

2. The firm of Kamau Muthoni Advocates represents the Landlord.

3. The Applicant operates a restaurant business within the suit premises.

4. The firm of Mutungi Kithinji & Company Advocates represents the Applicant.

B. The Dispute Background 5. The Applicant approached this Honourable Tribunal on 5th June 2024 through a Complaint and an Application filed under a Certificate of Urgency of the same date, after being served by the landlord with a notice to vacate the suit premises. The Applicant sought orders, inter alia, to restrain the Landlord from interrupting and interfering with their peaceful enjoyment, use, occupation, and business operations on the suit premises.

6. In the application, the Applicant asserted that all rent due to the Landlord had been dutifully paid, denying any arrears as alleged. The Applicant further claimed that the statement of account detailing the purported arrears was false, as the account did not belong to them. Additionally, the Applicant argued that the notice to vacate was defective for failing to comply with the requirements of the Landlord and Tenant (Shops, Hotels, Catering Establishments) Act Cap 301 Laws of Kenya (hereinafter referred to as “the Act”). The Applicant based the application upon these grounds.

7. Upon perusal of the Application and Complaint, the Honourable Tribunal, on 6th June, 2024, granted Orders restraining the Landlord from interrupting and interfering with the Applicant's quiet enjoyment, use, occupation and/or business operations on the suit premises.

8. In opposition to the Application, the Landlord filed a Replying Affidavit sworn on 12th July 2024 by Joseph Kamau, the director of the Respondent Company. The Landlord asserts that the Landlord entered into a Tenancy Agreement with respect to House No. 2 with one Basheer Mohamed Abdulahi, who subsequently sublet the suit premises to the Applicant without the written consent of the Landlord, contravening the provisions of the Tenancy Agreement. Consequently, the Landlord denies the existence of any tenancy relationship with the Applicant.

9. In the affidavit, the Landlord asserts that the eviction was necessitated by the need to renovate the suit premises, rather than due to rent arrears as implied by the Applicant.

10. The Applicant thereafter filed a Further Affidavit sworn on 12th August 2024 in response to the replying affidavit. The Applicant asserted that an oral agreement was made with the Landlord regarding the tenancy of the suit premises, denying any involvement in a sub-tenancy as alleged by the Landlord. The Applicant reiterated that it paid rent to the Landlord's agent, who should be held responsible for any arrears.

11. The parties took directions and agreed to dispose of the Application through Written Submissions, which were duly filed by both parties.

12. The Applicant contends that the parties entered into an oral tenancy agreement on 5th July 2017, allowing the Applicant to occupy the suit premises at a monthly rent of Kshs. 20,000/-.

13. The Applicant asserts that the notice to vacate issued by the Landlord is unlawful and illegal, as it does not comply with the legal requirements of the Act. The notice was directed to the wrong party, and it lacked a signature, stamp, seal, and the specific house number to which it applied.

14. The Applicant maintains that there are no rent arrears, as all rent payments were made to the Landlord through Bashir Mohamed Abdullahi Al-Nono, who remitted the rent to Benson Asiligwa, the Landlord’s agent.

15. The Applicant denies being a sub-tenant of any other lessees and asserts that he solely occupied house number 2. Therefore, he cannot be held liable for the rent arrears of houses number 1 and 3.

16. The Applicant seeks an injunction as the Landlord has threatened eviction, which would result in the loss of goodwill and cause irreparable harm to the Applicant.

17. The Applicant prayed that the costs of the suit be borne by the Respondent.

18. On the other hand, the Landlord contends that the Application dated 4th April 2024 lacks merit, as the Applicant failed to disclose material facts to the Tribunal. Consequently, the interim orders issued by this court on 6th June 2024 should be set aside.

19. The Landlord asserts that no tenancy agreement exists between the parties, as the suit premises was initially leased to Sheikh Mohamed, Basheer Mohamed Abdullahi, and Lul Ahmed Abdulla, who subsequently sublet the premises to the Applicant.

20. The Landlord claims that the aforementioned tenants' failure to pay rent prompted the issuance of the termination notice and this is corroborated by the fact that the notice was addressed to Bashir Mohamed, the original tenant of the suit premises, according to the Landlord.

21. The Landlord prayed that the costs be borne by the Applicant.

C. List Of Issues For Determination 22. Having carefully perused the Pleadings presented before this Honourable Tribunal by the parties, it is my finding that the following issues arise for determination:-a.Whether there exists a tenancy relationship between the parties.b.Whether the Applicant is entitled to the reliefs sought.c.Who shall bear the costs of this suit?

D. Analysis And Findings 23. In determining whether there exists a tenancy relationship between the parties, I am guided by the general principles derived from the Act which outline that a landlord-tenant relationship exists when a person (the landlord) is entitled to and receives rent from another person (the tenant) for the occupation of premises. It prescribes that the tenant pays the landlord a specific amount of money regularly in exchange for the right to live in or use the property.

24. The Applicant acknowledges paying rent to the Landlord, albeit through Bashir Mohamed Abdullahi Al-Nono, who would then forward the payments to the Landlord. The Landlord contends that Bashir is the actual tenant with whom the tenancy relationship was established, not the Applicant. Consequently, it appears that a sub-tenancy exists between Bashir, the Lessee, and the Applicant.

25. If there were indeed an oral tenancy agreement between the parties in this suit, it would be evident from their conduct, such as rent payments being made directly from the Applicant to the Landlord. The Applicant, who asserts the existence of the tenancy, has failed to demonstrate this. Furthermore, the Applicant has not provided a justifiable reason for paying rent through a proxy rather than directly to the Landlord.

26. Furthermore, the Landlord contends that the sub-tenancy was conducted without his knowledge or approval and classified it as illegal from the outset. The Landlord contends that the sub-letting was against the express agreement between itself and the recognized Tenant, Mohammed Abdullahi Al-Nono. Additionally, under section 3 (2) of the Act, every tenancy governed by the Act incorporates implied terms and conditions, as specified in Schedule 3. Condition xii stipulates that the tenant cannot transfer, give away, or sublet the premises or any portion thereof without obtaining the landlord’s permission. No such permission was requested from the Landlord.

27. The essence of this provision is that before a tenant can sublet the premises, they must first obtain the landlord's written consent. This requirement is critical, as any sub-tenancy agreement entered into without such consent is considered legally invalid and unenforceable. The necessity for written consent ensures that the landlord is fully aware of and agrees to the subletting arrangement. In this case, both the Applicant and the Lessee, Basheer, failed to demonstrate that the sub-tenancy had the Landlord's approval

28. Based on the foregoing, the court will now address the issue of whether the Applicant is entitled to the reliefs sought in the Application. It is well settled that a court of law cannot enforce a contract or right undertaken contrary and in violation of a statutory provision. The most often quoted decision in this line is Scott vs Brown Doering, Mcnab & Co. (3) [1992] 2 QB 724 at page 728 to the effect that:-“No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not, if the evidence adduced by the plaintiff proves the illegality the court ought not to assist him”.

29. For this reason, it is evident that there exists no tenancy between the Applicant and the Landlord and further that the occupation of the suit premises by the Applicant is illegal and unlawful. On this basis, the Complaint and the Application dated 5th June 2024 are determined as follows: -

E. Ordersa.The Complaint and the Application dated 5th June 2024 are hereby dismissed for want of jurisdiction.b.Any Orders granted herein are discharged.c.Costs are awarded to the Landlord assessed at Kshs. 40,000/=.d.The file is marked as closed.

HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon P. Kitur this 27th day of January 2025 in the presence of Ms. Muema holding brief for Ms. Mutungi for the Applicant and Nyamagwa for the Landlord.HON P. KITURBUSINESS PREMISES RENT TRIBUNAL